ANNUAL REPORT - Europa · 2018-06-28 · ANNUAL REPORT 2017 JUDICIAL ACTIVITY Synopsis of the...

JUDICIAL ACTIVITY

ANNUAL REPORT2017

COURT OF JUSTICE OF THE EUROPEAN UNION


ANNUAL REPORT 2017

JUDICIAL ACTIVITY

Synopsis of the judicial activity of the Court of Justice and the General Court

Luxembourg, 2018

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CONTENTS

CONTENTS

Foreword by Mr K LENAERTS — President of the Court of Justice of the European Union � 8

CHAPTER I/THE COURT OF JUSTICE

A/THE COURT OF JUSTICE IN 2017: CHANGES AND ACTIVITY 12

B/CASE-LAW OF THE COURT OF JUSTICE IN 2017 14

I. Fundamental rights 14

II. Citizenship of the Union 19

III. Institutional provisions 22

1. Powers of the EU institutions 22

2. Legal acts of the European Union 23

2.1. Legal form of acts 23

2.2. Procedures for the adoption of acts 23

3. Access to documents 25

4. Non-contractual liability of the European Union 29

IV. EU law and national law 30

V. Proceedings of the European Union 33

VI. Agriculture 34

VII. Freedoms of movement 35

1. Freedom of movement for workers 35

2. Freedom of establishment 36

3. Freedom to provide services 37

VIII. Border controls, asylum and immigration 39

1. Asylum policy 39

1.1. Refugee status 39

1.2. Handling of applications for international protection 40

1.3. International protection in the event of a migration crisis 44

2. Immigration policy 48

JUDICIAL ACTIVITY 2017 3

CONTENTS

IX. Judicial cooperation in civil matters 49

1. Regulations�No 44/2001�and�No 1215/2012�on�jurisdiction�

and the recognition and enforcement of judgments in civil and commercial matters. 49

2. Regulation�No 1259/2010�on�the�law�applicable�to�divorce 51

3. Regulation�No 650/2012�on�succession 52

X. Judicial cooperation in criminal matters 53

XI. Competition 55

1. Article 101�TFEU 55

1.1. Liability of a parent company 55

1.2. Vertical agreements 56

2. Article 102�TFEU 57

3. Concentrations 59

4. Procedure for the application of the competition rules 60

5. State aid 62

XII. Fiscal provisions 65

XIII. Approximation of laws 68

1. Intellectual property 68

2. Protection of personal data 71

3. Telecommunications 73

4. Electronic commerce 74

5. Transfer of undertakings 75

6. Foodstuffs 76

XIV. Economic and monetary policy 77

XV. Social policy 79

XVI. Consumer protection 80

XVII. Environment 82

1. Environmental liability 82

2. Emission allowance trading 83

3. Protected sites 83

4. Aarhus Convention 85

XVIII. Common commercial policy 86

JUDICIAL ACTIVITY 20174

CONTENTS

XIX. International agreements 89

XX. Common foreign and security policy 92

C/ACTIVITY OF THE REGISTRY OF THE COURT OF JUSTICE IN 2017 96

D/ STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE COURT OF JUSTICE 100

E/COMPOSITION OF THE COURT OF JUSTICE 128

1. Change in the composition of the Court of justice in 2017 129

2. Order of precedence 130

3. Former members of the Court of justice 132

CHAPTER II/GENERAL COURT

A/ACTIVITYOF THE GENERAL COURT IN 2017 138

B/CASE-LAW OF THE GENERAL COURT IN 2017 140

TRENDS IN THE CASE-LAW OF THE GENERAL COURT IN 2017 140

I. Judicial proceedings 142

1. Jurisdiction of the European Union judicature 142

2. Concept of a measure against which an action may be brought 143

3. Representation by a lawyer who is not a third party 144

II. Institutional law 145

III. Competition rules applicable to undertakings 148

1. Developments�in�the�area�of�Articles�101�and�102 TFEU 148

2. Developments in the area of mergers 151

IV. State aid 153

1. Admissibility 153

2. Administrative procedure 154

3. Services of general economic interest 155

V. Intellectual property 156

1. Composition of the Boards of Appeal after referral 156


CONTENTS

2. European Union trade mark 157

a. Extent and nature of review by the Boards of Appeal 157

b. Non-contractual liability 159

c. Absolute grounds for refusal 159

d. Relative grounds for refusal 161

3. Designs 163

4. Plant varieties 164

VI. Common foreign and security policy — Restrictive measures 165

1. Ukraine 165

2. Republic of Tunisia 168

VII. Economic, social and territorial cohesion 169

VIII. Health protection 171

IX. Customs union 172

X. Dumping 173

XI. Supervision�of�the�financial�sector 175

XII. Public procurement by the institutions of the European Union 177

XIII. Arbitration clause 179

XIV. Access to documents of the institutions 180

1. Documents�in�the�administrative�file�in�proceedings�relating�to�abuse�of�a�dominant�position� 180

2. Documents drawn up by a Member State in the context of a procedure

for�failure�to�fulfil�obligations� 181

3. Documents held by the ECHA in the context of a procedure relating to an application

for authorisation to use a chemical substance 182

4. Documents relating to requests for quotation pertaining to all lots in a call for tenders 183

XV. Civil service 184

XVI. Actions for damages 189

XVII. Appeals 193

XVIII. Applications for interim measures 194


CONTENTS

C/ ACTIVITY OF THE REGISTRY OF THE GENERAL COURT IN 2017 198

I. Organisational�implications�of�the�entry�into�office�of�two�new�judges 199

II. Task of assisting the general Court 199

III. Administrative assistance 203

D/STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE GENERAL COURT 206

E/COMPOSITION OF THE GENERAL COURT 232

1. Changes in the composition of the General Court in 2017 233

2. Order of precedence 234

3. Former members of the General Court 237


FOREWORD

Foreword by Mr K LENAERTS — President of the Court of Justice of the European Union

Foreword

Transparency and cooperation were the hallmarks of 2017.

The ‘Judicial Network of the European Union’ ( JNEU) was launched last April under the aegis of the Court of Justice, as a follow-up to the Meeting of Judges held a month earlier to mark the 60th anniversary of the Treaty of Rome, which brought together the judges of the institution and the Presidents of the Constitutional and Supreme Courts of the Member States on the topic ‘The European justice network: a guarantee of high-quality justice’. That network, which has been in operation since 3 January 2018, seeks to strengthen the cooperation between the Court of Justice and the national courts by means of a multilingual platform enabling them to share, in a perfectly secure environment, information and documents intended to promote mutual understanding of the case-law of the Union and that of the Member States and to deepen preliminary ruling dialogue between the Court of Justice and the national courts.

I would like to take this opportunity to thank in particular the Directorate for Information Technology, the Research and Documentation Directorate, and the Communications and Translation Directorates, whose commitment and efficiency�have�greatly�contributed�to�the�interest�and�enthusiasm�generated�by�this�initiative�among�the�67�participating constitutional and supreme courts.

At�the�institutional�level,�the�first�two�of�the�three�phases�of�the�reform�of�the�judicial�structure�of�the�European�Union�adopted�by�the�EU�legislature�in�December�2015�have�practically�been�completed.�Although�a�final�appointment�is�still�to�be�made�to�complete�the�first�phase�of�the�doubling�of�the�number�of�judges�at�the�General�Court�by�2019,�the�second�phase�of�that�reform,�by�contrast,�was�completed�with�the�entry�into�office�of�two�additional judges in June and October 2017, respectively.

In parallel, and while the considerable reduction in the duration of proceedings before the General Court constitutes the�first�tangible�benefit�of�that�significant�reform,�the�Court,�in�response�to�an�invitation�by�the�EU�legislature,�sent the European Parliament, the Council and the Commission a report on 14 December 2017 in which it concludes that it is not necessary, at this stage, to transfer part of its jurisdiction for requests for a preliminary ruling to the General�Court,�but�calls�for�a�wider�reflection�on�the�division�of�jurisdiction�between�the�Court�of�Justice�and�the�General Court, in particular as regards direct actions and the handling of appeals by the Court of Justice.


Koen LENAERTSPresident of the Court of Justice

of the European Union

FOREWORD

The year 2017 was also characterised, internally, by a reorganisation of the administrative services of the institution which, in the context of budgetary constraints, the continual increase in the workload and rapid technological advancement, aims to bring about considerable synergies and better to align the Court’s services with the requirements�of�its�judicial�activity.�A�further�aim�of�that�restructuring,�which�took�effect�on�1�January�2018,�is�to�enable the institution to become more open and to enhance cooperation with its various interlocutors, especially at the national level.

More�specifically,� the�administrative�structure�of� the� institution�has�been� restructured�around� three� directorates-general — replacing the hitherto four — namely a Directorate-General for Administration, a Directorate-General for Multilingualism —�a�first�for�the�EU�institutions — and a Directorate-General for Information, while the Research and Documentation Directorate and the Terminology Projects and Coordination Unit have been attached directly to the Registrar of the Court.

As�regards�statistics,�2017�was�another�year�of�unflagging�activity.�The�overall�number�of�cases�brought�before�the courts comprising the institution (1 656) was higher than in 2016 (1 604). That increase applies in particular to the Court of Justice, before which a record number of cases was brought over the past year (739). The number of�cases�closed�in�2017�remained�very�significant�(1 594, compared with 1 628 in 2016).

This report provides a full record of changes concerning the institution and of its work in 2017. As in previous years, a substantial part is devoted to succinct but exhaustive accounts of the main judicial activity of the Court of Justice and the General Court. Separate statistics for each court, preceded by a brief introduction, supplement and illustrate the analysis.

I�would�like�to�take�this�opportunity�to�express�my�warmest�thanks�to�my�colleagues�and�the�entire�staff�for�their�commitment and the outstanding work carried out by them for our institution and, through it, the European project. In October 2017, the Award for ‘Concord’ of the Princess of Asturias Foundation was bestowed on the European Union for its ‘unique model of supranational integration’ which has achieved ‘the longest period of peace in modern Europe’ and disseminated ‘values such as freedom, human rights and solidarity’ to the world. This must serve as a reminder to us, in a Europe in which terrorism, the migration crisis and nationalist tendencies are�all�too�present,�of�the�need�to�reaffirm�tirelessly�the�paramount�importance�of�those�founding�values�and�to�subscribe to them unreservedly.


CHAPTER ITHE COURT OF JUSTICE

CHAPTER I/THE COURT OF JUSTICE

A/THE COURT OF JUSTICE IN 2017: CHANGES AND ACTIVITY

By Mr Koen LENAERTS, President of the Court of Justice

This�first�chapter�summarises�the�activities�of�the�Court�of�Justice�in�2017.�It�begins,�in�this�first�part�(A)�of�the�chapter,�by�describing�briefly�how�the�Court�of�Justice�evolved�during�the�past�year�and�providing�an�overview�of�its judicial activity. The second part (B) presents, as it does each year, the main developments in the case-law, arranged by subject matter, the third and fourth parts set out the activity of the Court Registry during the reference period (C)�and�the�statistics�relating�to�the�past�judicial�year�(D),�and�the�fifth�part�sets�out�the�Court’s�composition�during that year (E).

1.1. The past year was one of absolute stability as regards the composition of the Court in that no judges or Advocates�General�departed�or�entered�into�office�in�the�course�of�2017.�

1.2. As regards the functioning of the institution, the implementation of the reform of the judicial structure of the European Union resulting from Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2015 L 341, p. 14), which is set to double the number of judges at the General Court by 2019, continued over�the�past�year.�Although�one�nomination�is�still�to�be�made�in�order�to�complete�the�first�phase�of�that�reform,�the�second�phase�thereof�was�completed�with�the�entry�into�office�of�two�additional�judges�in�formal�sittings�held�on 8 June and 4 October 2017.

2. As regards statistics, the reader is referred to the comments on the data relating to the past year that are made�at�the�beginning�of�Part�C�of�this�chapter�of�the�Annual�Report;�only�the�major�trends�that�can�be�identified�from�that�data�are�summarised�briefly�now.

The�first�striking�aspect�relates�to�the�overall�number�of�cases�brought�before�the�Court�in�2017.�739�cases�were�registered before the Court over the course of the year, which sets a new record in the history of the institution, eclipsing the 713 cases registered in 2015. That record number is due in particular to the rise in the number of requests for a preliminary ruling (533, namely a 13% increase on the previous record set in 2016), which can largely be explained by the lodging of a series of similar cases (43) seeking an interpretation of Regulation (EC) No 261/2004 1 concerning compensation to air passengers. In parallel, the number of actions for failure of a Member�State�to�fulfil�obligations�continued�to�rise�(41�in�2017,�compared�with�31�in�2016).�As�regards�appeals,�the number lodged before the Court in 2017 (141) was lower than in the two previous years (206 in 2015 and 168 in 2016).

Another striking trend of the past year relates to the total number of cases completed by the Court: with 699 cases completed, the Court’s productivity in 2017 was practically on a par with that of 2016 (704). Account being taken of the joining of the ‘airline’ cases referred to above, 2017 was thus a balanced year (697 cases lodged and 699 cases closed).

1/ �Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and�assistance�to�passengers�in�the�event�of�denied�boarding�and�of�cancellation�or�long�delay�of�flights,�and�repealing�Regulation�(EEC)� No 295/91 (OJ 2004 L 46, p. 1).



So far as concerns the average duration of proceedings before the Court, the average duration of proceedings regarding requests for a preliminary ruling, although slightly up on 2016 (15 months, which was the lowest average duration recorded in the history of the Court), remained less than 16 months (15.7 months), which is still noteworthy in the light of the complexity of some of the legislation recently referred to the Court for interpretation. The increase was more pronounced with regard to the average duration of appeal proceedings (17.1 months compared with 12.9 months in 2016), which can be largely explained by the completion over the past year of complex competition law cases, of which 14 were appeal proceedings in a very large cartel case concerning bathroom fittings�and�fixtures�manufacturers.�



B/CASE-LAW OF THE COURT OF JUSTICE IN 2017

I. FUNDAMENTAL RIGHTS

In 2017, the Court ruled on a number of occasions on fundamental rights in the EU legal order. Some of those decisions are covered in this report. 1 Special mention must be made in this section of Opinion 1/15 as well as the judgments in G4S Secure Solutions (C-157/15), Bougnaoui and ADDH (C-188/15), Florescu (C-258/14) and Jyske Finans (C-668/15).

In Opinion 1/15 (EU:C:2017:592) of 26 July 2017, the Court, sitting as the Grand Chamber, ruled on the compatibility with the provisions of the Treaties and, for the first time, with those of the Charter of Fundamental Rights of the European Union, of an international agreement, namely the agreement negotiated between Canada and the European Union on the transfer and processing of Passenger Name Record data, signed in 2014. The envisaged agreement permits the systematic and continuous transfer of the Passenger Name Record data (PNR data) of all air passengers travelling between Canada and the European Union to the competent Canadian authorities with a view to that data being used and retained, and possibly transferred subsequently to other authorities and to other non-member countries, for the purpose of combating terrorism and forms of serious transnational crime.

In the light of the various forms of processing to which PNR data may be subject under the envisaged agreement, the�Court�found�that�such�processing�affects�the�fundamental�right�to�respect�for�private�life,�guaranteed�in�Article 7 of the Charter, and also falls within the scope of Article 8 of the Charter because it constitutes the processing�of�personal�data�within�the�meaning�of�that�article.�As�regards�possible�justification�for�such�interferences,�the Court pointed out that the objective pursued by the envisaged agreement, namely to ensure public security by�means�of�a�transfer�of�PNR�data�to�Canada�and�the�use�of�that�data�within�the�framework�of�the�fight�against�terrorist�offences�and�serious�transnational�crime,�constitutes�an�objective�of�general�interest�of�the�European�Union that is capable of justifying even serious interferences with the fundamental rights enshrined in Articles 7 and 8 of the Charter, provided that those interferences are limited to what is strictly necessary.

However, in the case of the possible transfer to Canada of sensitive data, such as racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, or data concerning a passenger’s health or sex life, the Court held that, having regard to the risk of data being processed contrary to the prohibition on discrimination enshrined in Article 21 of the Charter, a transfer of such data requires a precise and particularly solid�justification,�based�on�grounds�other�than�the�protection�of�public�security�against�terrorism�and�serious�transnational� crime.� The� Court� considered� that,� in� this� instance,� there� was� no� such� justification.�

1/ �The following judgments are included: judgment of 13 June 2017, Florescu and Others (C-258/14, EU:C:2017:448) , presented in Section I ‘Fundamental rights’; judgment of 10 May 2017, Chavez-Vilchez and Others (C-133/15, EU:C:2017:354), presented in Section II ‘Citizenship of the Union’; judgments of 16 February 2017, C. K. and Others (C-578/16 PPU, EU:C:2017:127); of 7 March 2017, X and X (C-638/16 PPU, EU:C:2017:173); of 15 March 2017, Al Chodor and Others (C-528/15, EU:C:2017:213); of 25 October 2017, Shiri (C-201/16, EU:C:2017:805); of 26 July 2017, Jafari (C-646/16, EU:C:2017:586); and of 6 September 2017, Slovakia and Hungary v Council (C-643/15 and C-647/15, EU:C:2017:631), presented in Section VIII.1 ‘Asylum Policy’; judgments of 7 March 2017, RPO (C-390/15, EU:C:2017:174), and of 16 May 2017, Berlioz Investment Fund (C-682/15, EU:C:2017:373), presented in Section XII ‘Fiscal provisions’; judgment of 29 November 2017, King (C-214/16, EU:C:2017:914), presented in Section XV ‘Social policy’; judgment of 20 December 2017, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (C-664/15, EU:C:2017:987), presented in Section XVII.4 ‘Aarhus Convention’; and judgment of 28 March 2017, Rosneft (C-72/15, EU:C:2017:236), presented in Section XX ‘Common foreign and security policy’.



http://curia.europa.eu/juris/documents.jsf?language=EN&critereEcli=ECLI:EU:C:2017:592














It concluded that the provisions of the agreement on the transfer of sensitive data and on the processing and retention of that data were incompatible with fundamental rights.

By contrast, the Court took the view that, as regards data other than sensitive data, the provisions of the envisaged agreement did not exceed the limits of what is strictly necessary in so far as they permit the transfer of the PNR data of all air passengers to Canada. The automated analysis of PNR data is intended to identify the risk to public security that persons who are not known to the competent services may potentially present, and who may, on account of that risk, be subject to further examination at borders. That processing of data facilitates and expedites the security checks to which, in accordance with Article 13 of the Chicago Convention, 2 all air passengers who wish to enter or depart from Canada are subject, those passengers being required to comply with the conditions on entry and departure laid down by the Canadian law in force. For the same reasons, for as long as the passengers are in Canada or are due to leave that non-member country, the necessary connection between that data and the objective pursued by the envisaged agreement exists, so that that agreement does not exceed the limits of what is strictly necessary merely because it permits the systematic retention and use of their PNR data.

However, as regards the use of PNR data during the air passengers’ stay in Canada, the Court pointed out that, since�following�verification�of�their�PNR�data�the�air�passengers�have�been�allowed�to�enter�the�territory�of�that�non-member country, the use of that data during their stay in Canada must be based on new circumstances justifying that use. That use therefore requires rules laying down the substantive and procedural conditions governing such use in order, inter alia, to protect the data in question against the risk of abuse. Such rules must be�based�on�objective�criteria�in�order�to�define�the�circumstances�and�conditions�under�which�the�Canadian�authorities referred to in the envisaged agreement are authorised to use that data. In order to ensure that those conditions are fully respected in practice, the use of retained PNR data during the air passengers’ stay in Canada must, as a general rule, except in cases of validly established urgency, be subject to a prior review carried out by a court or by an independent administrative body, the decision of that court or body being made following a reasoned request by the competent authorities submitted, inter alia, within the framework of procedures for the prevention, detection or prosecution of crime.

Furthermore, the continued storage of the PNR data of all air passengers after their departure from Canada, which the envisaged agreement permits, is not limited to what is strictly necessary. As regards air passengers in respect�of�whom�no�risk�has�been�identified�as�regards�terrorism�or�serious�transnational�crime�on�their�arrival�in Canada and up to their departure from that country, there would not appear to be, once they have left, a connection — even a merely indirect connection — between their PNR data and the objective pursued by the envisaged agreement which would justify that data being retained. By contrast, the storage of the PNR data of air passengers in respect of whom there is objective evidence from which it may be inferred that they may present such a risk even after their departure from Canada is permissible beyond their stay in Canada, even for a period of�five�years.

Since the interferences which the envisaged agreement entails are not all limited to what is strictly necessary and�are�therefore�not�entirely�justified,�the�Court�concluded�that�the�envisaged�agreement�may�not�be�concluded�in its current form.

2/ �The Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (United Nations Treaty Series, Vol. 15, No 102).



In the cases that gave rise to the judgments in G4S Secure Solutions (C-157/15, EU:C:2017:203) and Bougnaoui and ADDH (C-188/15, EU:C:2017:204), delivered on 14 March 2017, the Court, sitting as the Grand Chamber, was called upon to adjudicate on the compatibility with Directive 2000/78 3 of the prohibition, by an employer, of the visible wearing of religious signs in the workplace. In those judgments, that directive was, in particular, interpreted in the light of Article 10(1) of the Charter, laying down the right to freedom of conscience and religion.

The�first�case�concerned�a�female�employee�who�had�been�dismissed�because,�notwithstanding�the�existence�of an internal rule at the undertaking where she worked prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, she had expressed her intention on several occasions to wear an Islamic headscarf during working hours. In the second case, a female employee had been dismissed after her employer, following a complaint from a client to whom she had been assigned, asked her not to wear a veil in the future in observance of the principle of the need for neutrality as regards its customers.

The Court recalled that the right to freedom of conscience and religion guaranteed in Article 10(1) of the Charter corresponds to the right guaranteed in Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. In so far as the ECHR and, accordingly, the Charter use the term ‘religion’ in a broad sense, in that they include it in the freedom of persons to manifest their religion, the Court found that that concept should be interpreted for the purpose of Article 1 of Directive 2000/78 as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public.

In�the�first�case,�since�the�internal�rule�at�issue�refers�to�the�wearing�of�visible�signs�of�political,�philosophical�or�religious beliefs and thus covers any manifestation of such beliefs without distinction, the Court held that the rule must, therefore, be regarded as treating all workers of the undertaking in the same way by requiring them, in�a�general�and�undifferentiated�way,�inter�alia,�to�dress�neutrally,�which�precludes�the�wearing�of�such�signs.�In�those�circumstances,�the�Court�first�of�all�ruled�that�the�prohibition�on�wearing�an�Islamic�headscarf�which�arises�from an internal rule does not constitute direct discrimination based on religion or belief within the meaning of Article 2(2)(a) of Directive 2000/78. By contrast, the Court found that such an internal rule may constitute indirect discrimination within the meaning of Article 2(2)(b) of that directive if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage,�unless�it�is�objectively�justified�by�a�legitimate�aim,�such�as�the�pursuit�by�the�employer,�in�its�relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which is a matter for the national court to ascertain.

In the second case, the Court also pointed out that it is only in very limited circumstances that a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement. That concept refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out and does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of a customer. The Court concluded, in consequence, that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

3/ �Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).





In its judgment in Jyske Finans (C-668/15, EU:C:2017:278), delivered on 6 April 2017, the Court ruled on the prohibition on any direct or indirect discrimination based on ethnic origin provided for in Article 2(2)(a) and (b) of Directive 2000/43. 4 In this case, the person concerned, who was born in Bosnia and Herzegovina, resided in Denmark and had acquired Danish nationality in 2000. When purchasing a second-hand car with his Danish partner by means of a loan, the credit company had asked him to provide additional proof of his identity in the form of a copy of his passport or residence permit, since his driving licence indicated a country of birth other than a Member State of the European Union or of the European Free Trade Association (EFTA). No such request was made to his partner, born in Denmark. The person concerned took the view that the credit company’s practice was discriminatory and referred the matter to the Danish Equal Treatment Board, which awarded him compensation on grounds of indirect discrimination. The credit company — appearing as applicant before the referring court — considered that it had complied with its obligations under the rules on the prevention of money laundering 5 and challenged the categorisation of its practice as discriminatory.

In�its�examination,�in�the�first�place,�of�whether�the�practice�at�issue�amounted�to�direct�discrimination�based�on�ethnic origin, the Court considered whether a person’s country of birth had to be regarded as directly or inextricably linked�to�his�specific�ethnic�origin.�It�observed�that�ethnic�origin�cannot�be�determined�on�the�basis�of�a�single�criterion but, on the contrary, is based on a whole number of factors, some objective and others subjective, such as common nationality, religious faith, language, cultural and traditional origins and background. Accordingly, the Court held that a person’s country of birth cannot, in itself, justify a general presumption that that person is a member of a given ethnic group such as to establish the existence of a direct or inextricable link between those two�concepts.�It�cannot�therefore�be�concluded�that�the�requirement�to�provide�additional�proof�of�identification�at�issue�is�directly�based�on�ethnic�origin�and,�in�consequence,�that�that�practice�entails�different�treatment�that�is directly based on ethnic origin.

In the second place, the Court examined whether the practice at issue, although on the face of it neutral, constituted indirect discrimination based on ethnic origin which may put persons of a given racial or ethnic origin at a particular disadvantage compared with other persons. It stated that for the purposes of ascertaining whether a person has been subject to unfavourable treatment, it is necessary to carry out not a general abstract comparison, but a�specific�concrete�comparison,�in�the�light�of�the�favourable�treatment�in�question.�The�Court�rejected�the�argument that the use of the criterion at issue in the main proceedings, namely a person’s country of birth, is generally�more�likely�to�affect�persons�of�a�‘given�ethnicity’�than�‘other�persons’.�To�the�same�effect,�it�rejected�the argument that the use of that criterion would place at a disadvantage persons whose ethnic origin is that of a country other than a Member State of the European Union or the EFTA.

Since the practice at issue in the main proceedings was neither directly nor indirectly linked to the ethnic origin of the person concerned, the Court held that Article 2(2)(a) and (b) of Directive 2000/43 did not preclude that practice.

On 13 June 2017, in the judgment in Florescu and Others (C-258/14, EU:C:2017:448), the Grand Chamber of the Court ruled on the interpretation of the Memorandum of Understanding concluded in 2009 between the European Union and Romania,�point�5�of�which�provides�that�the�disbursement�of�every�instalment�of�the�financial�assistance�granted by the European Union to Romania is to be carried out subject to the satisfactory implementation of structural�reforms�to�its�public�finances.�It�also�ruled�on the interpretation of several provisions of EU primary law,

4/ �Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22).

5/ �Directive�2005/60/EC�of�the�European�Parliament�and�of�the�Council�of�26�October�2005�on�the�prevention�of�the�use�of�the�financial�system�for�the�purpose�of�money�laundering�and�terrorist�financing�(OJ�2005�L�309,�p.�15).





particularly Article 17 of the Charter of Fundamental Rights. The main proceedings concerned Romanian legislation prohibiting the combining of a net public sector retirement pension with income from activities carried out in public institutions if the amount of that pension exceeds a certain threshold. The applicants in the main proceedings had, at�the�same�time�as�holding�judicial�office,�taught�at�university.�At�the�time�of�their�retirement�from�the�judiciary,�they were entitled, initially, to combine their retirement pension with the income derived from their university teaching activities. However, following the adoption of the national legislation at issue, such combining was prohibited. The applicants in the main proceedings brought an action before a national court claiming that the legislation was contrary to EU law, particularly the provisions of the Treaty on European Union (EU Treaty) and the Charter, notwithstanding the fact that it had been adopted in order to comply with the Memorandum of Understanding.

The Court considered that the Memorandum of Understanding is based in law on Article 143 TFEU, which gives the European Union the power to grant mutual assistance to a Member State whose currency is not the euro and�which�faces�difficulties�or�is�seriously�threatened�with�difficulties�as�regards�its�balance�of�payments.�It�thus�ruled that since the Memorandum of Understanding gives concrete form to an agreement between the European Union and a Member State on an economic programme, it must be regarded as an act of an EU institution, within the meaning of Article 267 TFEU, which may, therefore, be subject to interpretation by the Court. It observed that the�Memorandum�of�Understanding,�although�mandatory,�contains�no�specific�provision�requiring�the�adoption�of national legislation such as that at issue. It is consequently for the national authorities, within the limits of the criteria stipulated in the Memorandum of Understanding, to decide what measures are most likely to attain the objectives pursued.

Next, the Court examined the conformity of the national legislation at issue with Article 6 TEU and Article 17 of the�Charter,�concerning�the�right�to�property.�In�that�regard,�the�Court�stated,�in�the�first�place,�that�the�objective�of that legislation is to implement the undertakings given by Romania in the Memorandum of Understanding, with the result that the Charter, particularly Article 17 thereof, is applicable to the main proceedings. However, it pointed out that the legislation is of an exceptional nature and is intended to be temporary. It also found that the legislation does not call into question the very principle of the right to a pension, but restricts its exercise in well-defined�and�limited�circumstances.�Thus,�the�legislation�is�consistent�with�the�essential�content�of�the�right�to property enjoyed by the applicants in respect of their pensions. In the second place, the Court noted that the objectives of that legislation, namely to reduce public sector wage costs and reform the pension system in an exceptional�context�of�financial�and�economic�crisis�in�Romania,�are�objectives�of�general�interest.�Lastly,�as�regards the suitability and necessity of the legislation at issue, the Court stated that, given the particular economic context, Member States have a broad discretion when adopting economic decisions and are in the best position to determine the measures likely to achieve the objective pursued. The Court therefore concluded that EU law did not preclude the national legislation at issue.



II. CITIZENSHIP OF THE UNION

As�regards�European�citizenship,�mention�must�be�made�of�three�judgments.�The�first�concerns�the�conditions�under which a citizen can be the subject of an expulsion decision by a Member State other than the State of origin, while the second and third relate to the derived right of residence of third country nationals who are family members of a Union citizen.

In its judgment in Petrea (C-184/16, EU:C:2017:684), delivered on 14 September 2017, the Court ruled on the application of Directive 2004/38 6 where a person who is the subject of an order excluding him from a Member State re-enters the Member State concerned in infringement of that order. In the instant case, the Greek authorities had issued an expulsion decision accompanied by an entry ban against a Romanian national in 2011 on the ground that he constituted a serious threat to public policy and public security. In 2013, the person concerned returned to�Greece�where�he�submitted�an�application�for�a�certificate�of�registration�as�a�Union�citizen,�which�was�granted�to him. After discovering that the person concerned was still subject to an exclusion order, the Greek authorities decided�to�withdraw�that�certificate�and,�again,�order�his�return�to�Romania.�The�person�concerned�challenged�that decision.

The Court recalled that the grant of a residence permit to a national of a Member State is to be regarded not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of EU law. Only a declaratory character attaches, therefore,�to�such�a�registration�certificate,�with�the�result�that�the�issue�of�that�document�cannot,�in�itself,�give�rise to a legitimate expectation on the part of the person concerned in his right to stay on the territory of the Member State concerned. Furthermore, Member States are able, under Article 27(1) of Directive 2004/38, to restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. According to the Court, it follows from the very nature of an exclusion order that it remains in force as long as it has not been lifted. Consequently, the mere�finding�that�it�has�been�infringed�allows�the�competent�authorities�to�adopt�a�new�expulsion�decision.�The�Court therefore held that Directive 2004/38 and the protection of legitimate expectations do not preclude the withdrawal of the person concerned’s residence permit or the taking of a further expulsion decision against him in the circumstances of the case.

The�Court�also�ruled�on�whether�the�principle�of�effectiveness�precludes�a�legal�practice�according�to�which�a�national of a Member State who is subject to a return order may not rely, in support of an action against that order, on the unlawfulness of the exclusion order previously adopted against him. The Court recalled that, in the absence of EU rules, the Member States are responsible for determining the rules of procedure governing court actions,�but�those�rules�must�not�be�such�as�to�render�virtually�impossible�or�excessively�difficult�the�exercise�of�those rights. In the instant case, EU law in no way precludes national legislation from providing that it is not possible to rely, against an individual measure, such as a return decision, on the unlawfulness of an exclusion order�which�has�become�final,�either�because�the�time�limit�for�bringing�an�action�against�that�order�expired�or�because the action brought against it was dismissed. However, the Court made clear that the person concerned must�have�had�the�possibility�to�contest�effectively�that�order�in�good�time�in�the�light�of�the�provisions�of�Directive�2004/38.

6/ �Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).




Lastly, as regards the question whether Article 30 of Directive 2004/38 requires a decision adopted under Article�27(1)�of�that�directive�to�be�notified�to�the�person�concerned�in�a�language�he�understands,�although�he�did�not�bring�an�application�to�that�effect,�the�Court�stated�that�the�Member�States�are�required�to�take�every�appropriate measure to ensure that the person concerned understands the content and implications of a decision restricting his rights of entry or residence for reasons of public policy, public security or public health. However, it�does�not�require�that�decision�to�be�notified�to�him�in�a�language�he�understands�or�which�it�is�reasonable�to�assume�he�understands,�even�though�he�did�not�bring�an�application�to�that�effect.

On 10 May 2017, in the judgment in Chavez-Vilchez and Others (C-133/15, EU:C:2017:354), the Court, sitting as the�Grand�Chamber,�provided�clarification�on�the derived right of residence on which a third country national may rely, on the basis of Article 20 TFEU, as the parent of a minor who is a Union citizen. The reference for a preliminary ruling was concerned with the situation of several third country nationals who were mothers of one or more children with Netherlands nationality whose fathers also have Netherlands nationality. Those children lived in the Netherlands mainly or exclusively with their mothers. The persons concerned had made applications for social�assistance�and�child�benefit�which�had�been�rejected�by�the�competent�Dutch�authorities�on�the�ground�that they did not have a right of residence in the Netherlands. Proceedings having been brought before it in relation to those applications, a court of the Netherlands asked the Court whether the applicants could, as mothers of children who are Union citizens, acquire a right of residence under Article 20 TFEU.

The Court recalled its case-law that Article 20 TFEU precludes national measures, including decisions refusing a right�of�residence�to�the�family�members�—�third�country�nationals�—�of�a�Union�citizen,�which�have�the�effect�of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. 7 In this case, if the mothers were compelled to leave the territory of the EU, that could deprive their children of the genuine enjoyment of the substance of those rights by compelling those children to leave the territory of the EU, which is a matter for the national court to determine. In order to assess that risk, it is important to determine which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, according to the Court, the national authorities must take account of the right to respect for family life, as laid down in Article 7 of the Charter, and the best interests of the child, as recognised in Article 24(2) thereof.

The Court also stated that the fact that the other parent, a Union citizen, is actually able and willing to assume sole�responsibility�for�the�primary�day-to-day�care�of�the�child�is�a�relevant�factor,�but�it�is�not�in�itself�a�sufficient�ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third country national. In reaching such a conclusion, account must be taken,�in�the�best�interests�of�the�child�concerned,�of�all�the�specific�circumstances,�including�the�age�of�the�child,�the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. As regards the burden of proof, the Court considered that it is for the third-country national parent to provide evidence on the basis of which it can be assessed whether a decision to refuse that person a right of residence would deprive the child of the genuine enjoyment of the substance of the rights attached to the status of Union citizen by obliging the child to leave the territory of the EU. However, it pointed out that the national authorities must ensure that national legislation on the burden of proof does not undermine the effectiveness�of�Article�20�TFEU.

7/ �Judgments of the Court of 8 March 2011, Ruiz Zambrano (C-34/09, EU:C:2011:124), and of 6 December 2012, O. and S. (C-356/11 and C-357/11, EU:C:2012:776).






On 14 November 2017, by its judgment in Lounes (C-165/16, EU:C:2017:862), the Court, sitting as the Grand Chamber, ruled on the derived right of residence on which a third country national may rely, on the basis of Article 21 TFEU, as a family member of a Union citizen, in the Member State in which that citizen resided before acquiring the nationality of that Member State in addition to the nationality of origin. In this case, the applicant, an Algerian national, had entered the United Kingdom on a six-month visitor visa and had subsequently remained illegally in British territory. There, he met a Spanish national who had become a naturalised British citizen while retaining her Spanish nationality. Following their marriage, the applicant applied to the United Kingdom for a residence card as a family member of a national of the European Economic Area (EEA). The United Kingdom authorities refused that application on the basis that, under the UK legislation transposing Directive 2004/38, 8 his wife had ceased to be regarded as an ‘EEA national’ following her acquisition of British citizenship and that the applicant could not therefore claim a residence card as a family member of an EEA national. Proceedings having been brought before it by the applicant in relation to that refusal, a UK court asked the Court whether that decision and the UK legislation were compatible with EU law.

In�the�first�place,�the�Court�noted�that�Directive�2004/38,�which�lays�down�the�conditions�governing�the�exercise�of the right of Union citizens to move and reside freely within the territory of the Member States, is not intended to govern the residence of a Union citizen in the Member State of which he is a national, since, under a principle of international law, he enjoys an unconditional right of residence there. Accordingly, in the Court’s view, Directive 2004/38 ceased to govern the residence in the United Kingdom of the applicant’s wife when she acquired British nationality.�Consequently,�her�husband�—�the�applicant�—�cannot�benefit�from�a�derived�right�of�residence�in�the United Kingdom on the basis of the directive.

In the second place, the Court considered whether the applicant could be accorded a derived right of residence in that Member State on the basis of Article 21(1) TFEU, which provides that every citizen of the Union has the right to move and reside freely within the territory of the Member States. The Court stated that if the rights conferred on Union citizens by that provision — in particular the right to lead a normal family life, together with their�family�members,�in�the�host�Member�State�—�are�to�be�effective,�citizens�in�a�situation�such�as�that�of�the�applicant’s wife must be able to continue to enjoy that right in the host Member State, after they have acquired the nationality of that Member State in addition to their nationality of origin, and must be able to build a family life with their third-country national spouse. Thus, the Court held that a third country national in the applicant’s situation is eligible for a derived right of residence in the host Member State, under Article 21(1) TFEU, subject to conditions which must not be stricter than those provided for by Directive 2004/38 for the grant of such a right to a third country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national.

8/ �Cited above, see footnote 6.




III. INSTITUTIONAL PROVISIONS

1. POWERS OF THE EU INSTITUTIONS

By its judgment of 26 July 2017, Czech Republic v Commission (C-696/15 P, EU:C:2017:595),�the�Court�confirmed�on appeal the judgment of the General Court 9 dismissing two actions for annulment against Delegated Regulations No 885/2013 10 and No 886/2013 11 supplementing Directive 2010/40, 12 adopted in the area of transport policy. In its actions, the Czech Republic had argued in particular that by adopting the contested regulations, the Commission had exceeded its delegated powers by imposing on Member States an obligation to establish supervisory bodies to assess compliance with the requirements set out in those regulations. In the judgment under appeal, the General Court had found that the Commission had observed the limits of its power under Article 290 TFEU and the limits of the authority laid down in Directive 2010/40.

The Court pointed out that a delegation of power under Article 290 TFEU enables the Commission to supplement or amend non-essential elements of a legislative act. In accordance with that provision, however, the legislative act�must�explicitly�define�not�only�the�objectives,�but�also�the�content,�scope�and�duration�of�the�delegation�of�power, and the EU judicature is not able to make up for the absence of the limits required by that provision. As for determining which elements of a legislative act must be categorised as ‘essential’, the Court recalled that this is not for the assessment of the EU legislature alone, but must be based on objective factors amenable to judicial review. Thus, an element is essential in particular if, in order to be adopted, it requires political choices falling within the responsibilities of the EU legislature, or if it means that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the EU legislature is required.

In�accordance�with�those�principles,�the�Court�confirmed�that,�in�the�instant�case,�Directive�2010/40�provided�the Commission with an adequate legal basis for establishing the disputed national supervisory bodies and that such establishment was not an essential element of the matter in question.

9/ �Judgment of the General Court of 8 October 2015, Czech Republic v Commission (T-659/13 and T-660/13, EU:T:2015:771).

10/ �Commission Delegated Regulation (EU) No 885/2013 of 15 May 2013 supplementing ITS Directive 2010/40/EU of the European Parliament and of the Council with regard to the provision of information services for safe and secure parking places for trucks and commercial vehicles (OJ 2013 L 247, p. 1).

11/ �Commission Delegated Regulation (EU) No 886/2013 of 15 May 2013 supplementing Directive 2010/40/EU of the European Parliament and of�the�Council�with�regard�to�data�and�procedures�for�the�provision,�where�possible,�of�road�safety-related�minimum�universal�traffic�information free of charge to users (OJ 2013 L 247, p. 6).

12/ �Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport�Systems�in�the�field�of�road�transport�and�for�interfaces�with�other�modes�of�transport�(OJ�2010�L�207,�p.�1).




http://curia.europa.eu/juris/documents.jsf?language=EN&critereEcli=ECLI:EU:T:2015:771

2. LEGAL ACTS OF THE EUROPEAN UNION

2.1. Legal form of acts

In the judgment in Commission v Council (C-MR15) (C-687/15, EU:C:2017:803) of 25 October 2017, the Grand Chamber of the Court upheld an action for annulment brought by the Commission against the conclusions of the Council adopted on 26 October 2015 concerning the World Radiocommunication Conference 2015 (C-MR15) of the International Telecommunication Union (ITU) on the ground that the Council had infringed the essential procedural requirements under Article 218(9) TFEU.

As�regards,�in�the�first�place,�the�form�of�the�contested�act,�the�Court�recalled�that�Article�13(2)�TEU�provides�that�each EU institution is to act within the limits of the powers conferred on it in the Treaties and in conformity with the procedures, conditions and objectives set out therein. It held that the rules regarding the manner in which the EU institutions arrive at their decisions are laid down in the Treaties and are not within the discretion of the Member States or of the institutions themselves, and that the Treaties alone may, in particular cases, empower an institution to amend a decision-making process established by the Treaties. As regards the legal form of the acts to be adopted under Article 218(9) TFEU, the Court pointed out that the fact that an EU institution derogates from the legal form laid down by the Treaties (in the instant case, the adoption of a decision) constitutes an infringement of essential procedural requirements that is such as to require the annulment of the act concerned, since that derogation is likely to create uncertainty as to the nature of that act or as to the procedure to be followed for its adoption, thereby undermining legal certainty, in breach of the essential procedural requirements set out in that provision.

As regards, in the second place, the fact that the contested act makes no reference to the legal basis on which it was adopted, the Court drew attention to its case-law that the choice of the appropriate legal basis has constitutional significance,�since,�having�only�conferred�powers,�the�European�Union�must�link�the�acts�which�it�adopts�to�provisions of the Treaty on the Functioning of the European Union (TFEU) which actually empower it to adopt such acts. Accordingly, the derogation from the legal form laid down by Article 218(9) TFEU and the failure to indicate the legal basis are the source of confusion as to the legal nature and scope of the contested act and as to the procedure that had to be followed for its adoption, a confusion that was apt to weaken the European Union in the defence of its position at the World Radiocommunication Conference 2015.

2.2. Procedures for the adoption of acts

Reference�should�be�made�to�three�judgments�under�this�heading.�The�first�concerns�the�obligation�to�consult�the�European Parliament during the EU legislative procedure. The second deals with a proposed European citizens’ initiative. The third is the judgment in Slovakia and Hungary v Council (C-643/15 and C-647/15, EU:C:2017:631) relating to provisional measures of a mandatory nature to relocate asylum applicants. 13

13/ �That judgment is presented under Section VIII.1 ‘Asylum policy’.





In its judgment in RPO (C-390/15, EU:C:2017:174), delivered on 7 March 2017, the Court, sitting as the Grand Chamber,�confirmed�the validity of the provisions of Directive 2006/112 14 allowing Member States to apply a reduced rate of value added tax (VAT) to printed publications such as books, newspapers and periodicals, while excluding digital publications from that specific scheme, with the exception of digital books supplied on a physical support. In the dispute in the main proceedings, the Polish Constitutional Court, hearing an action for a declaration that national provisions precluding the application of a reduced rate of VAT to digital publications were contrary to the Polish constitution, entertained doubts as to whether the corresponding provisions of Directive 2006/112, as amended by Directive 2009/47, 15�were�lawful.�It�asked�the�Court,�first,�whether�the�Parliament�had�been�sufficiently�involved�in�the�legislative procedure for the adoption of Directive 2009/47, which amended the provisions of Directive 2006/112 to allow a reduced rate of VAT to be applied to printed publications, and, secondly, whether the relevant provisions of Directive 2006/112 infringed the principle of equal treatment. 16

As�regards�the�legislative�procedure�for�the�adoption�of�Directive�2009/47,�the�Court�—�after�noting�that�the�final�version�of�that�directive�differed�from�the�proposal�on�the�basis�of�which�the�Parliament�had�been�consulted�—�recalled that due consultation of the Parliament in the cases provided for by the Treaties constitutes an essential procedural requirement disregard of which renders the measure concerned void. That obligation to consult the Parliament�means�that�it�must�be�consulted�afresh�whenever�the�text�finally�adopted,�taken�as�a�whole,�differs�in essence from the text on which the Parliament has already been consulted, except where the amendments substantially�correspond�to�a�wish�of�the�Parliament�itself.�However,�since�the�final�version�of�the�contested�provision�of�Directive�2009/47�was�only�a�simplification�of�the�drafting�of�the�text�which�was�set�out�in�the�proposal�for a directive on which the Parliament had been consulted and the substance of which had been fully preserved, the Court found that the Council was not required to consult the Parliament afresh before adopting that directive.

In the judgment of 12 September 2017, Anagnostakis v Commission (C-589/15 P, EU:C:2017:663), the Court, sitting as the Grand Chamber, ruled on an appeal brought against the judgment of the General Court 17 dismissing an action for annulment against a decision of the Commission refusing to register a proposed European citizens’ initiative (ECI) submitted on the basis of Article 4(2)(b) of Regulation No 211/2011. 18 The proposed ECI sought, in particular, to enshrine in EU legislation the ‘principle of the state of necessity’, under which the public debt of countries whose�financial�and�political�existence�is�threatened�by�the�debt�itself�may�be�written�off.�

As regards the Commission’s obligation to inform the organisers of the reasons for the refusal to register their proposed�ECI,�as�provided�for�in�Article�4(3)�of�Regulation�No�211/2011,�the�Court,�first�of�all,�pointed�out�that�given the importance of the ECI as a mechanism enabling citizens to participate in the democratic life of the European Union, the Commission is required to provide a clear statement of reasons for such a refusal.

14/ �Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2009/47/EC of 5 May 2009 amending Directive 2006/112/EC as regards reduced rates of value added tax (OJ 2009 L 116, p. 18).

15/ �Council Directive 2009/47/EC of 5 May 2009 amending Directive 2006/112/EC as regards reduced rates of value added tax (OJ 2009 L 116, p. 18).

16/ �The Court’s answer to the second question is presented in Section XII ‘Fiscal provisions’.

17/ �Judgment of the General Court of 30 September 2015, Anagnostakis v Commission (T-450/12, EU:T:2015:739).

18/ �Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1).






However,�in�the�light�of�the�fact�that�the�proposed�ECI�at�issue�was�very�brief�and�lacked�clarity,�the�Court�confirmed�the�General�Court’s�finding�that�the�Commission’s�refusal�decision�was�sufficiently�reasoned�in�this�case.

Secondly, the Court noted that the decision on the registration of a proposed ECI must be taken in accordance with the principle of good administration, which entails, in particular, the obligation for the competent institution to conduct a diligent and impartial examination which takes into account all the relevant features of the case. The condition relating to the registration of proposed ECIs set out in Article 4(2)(b) of Regulation No 211/2011, which provides that a proposed ECI must not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act, must be interpreted and applied by the Commission in such a way as to ensure easy accessibility to that mechanism. Consequently, it is only if a proposed ECI, in view of its subject matter and objectives, is manifestly outside the scope of the Commission’s powers that the Commission is entitled to refuse�to�register�it.�The�Court�nonetheless�confirmed�that�the�provisions�of�the�TFEU�invoked�in�this�case�by�the�organiser of the proposed ECI in support of his action for annulment, namely Articles 122(1) and (2) TFEU and Article 136(1) TFEU, could not serve as the legal basis for the adoption of the ‘principle of the state of necessity’ referred to in the proposal.

3. ACCESS TO DOCUMENTS

In 2017, the Court had the opportunity to deliver a number of important judgments in the area of access to documents.�Those�decisions�allowed�the�Court,�in�particular,�to�provide�further�clarification�on�the�concept�of�existing document for the purposes of Regulation No 1049/2001 19 in the context of electronic databases, on the application of that regulation to the written submissions of the Member States in judicial proceedings, on the application�of�the�general�presumption�of�confidentiality�to�documents�relating�to�an�EU�Pilot�procedure�and,�lastly, on the concept of investigation. The Court also ruled on the interpretation of Regulation No 1049/2001 in the context of the application of the Aarhus Convention. 20

First of all, in its judgment in Typke v Commission (C-491/15 P, EU:C:2017:5), delivered on 11 January 2017, which confirms�the�judgment�under�appeal�of�the�General�Court,�21 the Court ruled on the concept of existing document in relation to electronic databases. In this case, the applicant had applied to the European Personnel Selection Office�(EPSO)�for�access�to�a�‘table’�comprising�a�series�of�data�contained�in�various�documents�held�by�EPSO�in�electronic form which could not be extracted from its database by means of a normal search.

The Court considered that while it was true that an electronic database may enable the extraction of any information it contains, the possibility that a document may be created from such a database does not lead to the conclusion that the document exists for the purposes of Regulation No 1049/2001. The Court recalled that the right of access to documents of the institutions applies only to existing documents in the possession of the institution concerned and that Regulation No 1049/2001 cannot therefore be relied upon to oblige an institution to create a document which does not exist.

19/ �Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

20/ �Also see Section XVII.4 ‘Aarhus Convention’.

21/ �Judgment of the General Court of 2 July 2015, Typke v Commission (T-214/13, EU:T:2015:448).





The Court held that all information which can be extracted from an electronic database by general use through preprogrammed search tools, even if that information has not previously been displayed in that form or ever been�the�subject�matter�of�a�search�by�the�staff�of�the�institutions,�must�be�regarded�as�an�existing�document.�Accordingly, in order to satisfy the requirements of Regulation No 1049/2001, the institutions may be led to establish a document from information contained in a database by using existing search tools. On the other hand, any information whose extraction from a database calls for a substantial investment must be regarded as a new document. Accordingly, any information which would, in order to be obtained, require an alteration either to the organisation of an electronic database or to the search tools currently available for the extraction of information must be considered to be a new document.

Next, in the judgment in Commission v Breyer (C-213/15 P, EU:C:2017:563),�delivered�on�18�July�2017,�which�confirms�the judgment under appeal of the General Court, 22 the Court, sitting as the Grand Chamber, ruled on whether a request addressed to an institution — a party to proceedings — seeking access to the written submissions lodged by a Member State in judicial proceedings falls within the scope of Regulation No 1049/2001. In the instant case, the respondent had asked the Commission in March 2011 to grant him access to the written submissions that the Republic of Austria had lodged with the Court of Justice in infringement proceedings brought by the Commission against Austria for failing to transpose a directive. Those judicial proceedings were concluded by a judgment of the Court in 2010. The Commission had refused access to those submissions, of which it held copies, on the ground that, in its view, they did not fall within the scope of Regulation No 1049/2001. An action for annulment having been brought before it, the General Court annulled the Commission’s decision to refuse access.

In�the�first�place,�the�Court�recalled�that�the�scope�of�Regulation�No�1049/2001�is�defined�by�reference�to�the�institutions listed in the regulation, not by reference to particular categories of documents or the author of the document held by one of those institutions. Thus, the fact that documents held by one of the institutions referred to in Regulation No 1049/2001 were drawn up by a Member State and are linked to court proceedings cannot exclude such documents from the scope of the regulation. In addition, the Court found that the fact that neither the Statute of the Court of Justice nor the Rules of Procedure of the EU Courts provide for a right of access by third�parties�to�written�submissions�filed�in�court�proceedings�cannot�have�the�consequence�that�the�regulation�does not apply to applications for access to written submissions that have been drawn up by a Member State for the purpose of court proceedings before the EU Courts and are in the possession of an institution. It therefore considered that the written submissions at issue fell within the scope of Regulation No 1049/2001 as documents held by an institution subject to that regulation.

In the second place, in its examination of the general scheme and objectives of Article 15(3) TFEU, the Court concluded that the non-applicability of the system of access to documents to the Court when it exercises judicial functions, provided for in the fourth subparagraph of Article 15(3) TFEU, does not preclude the application of that system to documents lodged with the Court in the context of judicial proceedings. Furthermore, since Regulation No 1049/2001 allows for access to documents connected with proceedings before the EU Courts to be refused if appropriate in order to protect such court proceedings, the fourth subparagraph of Article 15(3) TFEU need not be interpreted as excluding all the written submissions at issue from the scope of Regulation No 1049/2001. The Court therefore concluded that the General Court was right to hold that those submissions were not excluded, any more than those drawn up by the Commission itself, from the right of access to documents set out in the fourth subparagraph of Article 15(3) TFEU.

22/ �Judgment of the General Court of 27 February 2015, Breyer v Commission (T-188/12, EU:T:2015:124).





Furthermore, by its judgment in Sweden v Commission (C-562/14 P, EU:C:2017:356) of 11 May 2017, the Court confirmed,�on�appeal,�the�judgment�of�the�General�Court�23 dismissing an action brought by several citizens for the annulment of a decision of the Commission refusing to grant them access, under Regulation No 1049/2001, to two requests for information sent by that institution to the Federal Republic of Germany as part of an EU Pilot procedure intended to prepare or avoid a procedure for failure to fulfil obligations against a Member State.

The Court considered that, so long as, during the pre-litigation stage of an inquiry carried out as part of an EU Pilot�procedure,�there�is�a�risk�of�affecting�the�nature�of�the�infringement�procedure,�altering�its�progress�or�undermining�the�objectives�of�that�procedure,�the�application�of�the�general�presumption�of�confidentiality�of�the�documents�exchanged�between�the�Commission�and�the�Member�State�concerned�is�justified.�It�also�stated�that�that�risk�exists�until�the�EU�Pilot�procedure�is�closed�and�there�is�a�definitive�decision�not�to�open�a�formal�infringement procedure against the Member State. During that period, the Commission can therefore rely on a general�presumption�of�confidentiality�to�refuse�to�grant�access,�without�conducting�a�specific�and�individual�examination of the documents requested. Nonetheless, that general presumption does not exclude the possibility of demonstrating that a given document disclosure of which has been requested is not covered by that presumption, or that there is an overriding public interest justifying the disclosure of the document concerned by virtue of the last clause of Article 4(2) of Regulation No 1049/2001.

In its judgment in France v Schlyter (C-331/1 P, EU:C:2017:639),�delivered�on�7�September�2017,�which�confirms�the judgment under appeal of the General Court, 24 the Court ruled on whether a detailed opinion issued by the Commission in the context of the procedure for the provision of information relating to technical regulations, provided for in Directive 98/34, 25 forms part of an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.

In�the�first�place,�the�Court�considered�that�a�structured�and�formalised�Commission�procedure�that�has�the�purpose of collecting and analysing information in order to enable the institution to take a position in the context of its functions provided for by the TEU and TFEU constitutes an investigation. It made clear that that procedure does�not�necessarily�have�to�have�the�purpose�of�detecting�or�pursuing�an�offence�or�irregularity�and�that�the�concept of ‘investigation’ could also cover a Commission activity intended to establish facts in order to assess a given situation. It is not necessary for the Commission’s position in performing its functions to take the form of a decision within the meaning of the fourth paragraph of Article 288 TFEU. Such a position could take the form, inter alia, of a report or a recommendation.

The Court took the view that, in the instant case, the detailed opinion delivered by the Commission, in so far as it�constitutes�an�official�measure�clarifying�the�legal�position�of�that�institution�in�relation�to�the�compatibility�of�draft�technical�regulations�notified�by�a�Member�State�with,�inter�alia,�the�free�movement�of�goods�and�the�freedom of establishment of operators, falls under an ‘investigation’ procedure.

23/ �Judgment of the General Court of 25 September 2014, Spirlea v Commission (T-306/12, EU:T:2014:816).

24/ �Judgment of the General Court of 16 April 2015, Schlyter v Commission (T-402/12, EU:T:2015:209).

25/ �Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in�the�field�of�technical�standards�and�regulations�and�of�rules�on�Information�Society�services�(OJ�1998�L�204,�p.�37),�as�amended�by�Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18).







In�the�second�place,�the�Court�held�that�since�none�of�the�provisions�of�Directive�98/34�provides�for�the�confidentiality�of detailed opinions delivered under Article 9(2) of that directive, the requirement of transparency underlying the directive applies to those detailed opinions as a matter of course. It also made clear that the requirement of transparency does not, however, prevent the Commission, on the basis of the circumstances of the particular case, from relying on the third indent of Article 4(2) of Regulation No 1049/2001 in order to deny access to a detailed opinion delivered under Article 9(2) of that directive, provided that it demonstrates that access to the detailed�opinion�in�question�would�specifically�and�actually�undermine�the�objective�of�preventing�a�technical�regulation that is incompatible with EU law being adopted.

Lastly, in the judgment in Saint-Gobain Glass Deutschland v Commission (C-60/15 P, EU:C:2017:540), delivered on 13 July 2017, the Court upheld the appeal lodged by Saint-Gobain Glass Deutschland against the judgment of the General Court 26 dismissing its action for annulment of the decision of the Commission refusing full access to a document communicated to the Commission by the Federal Republic of Germany in the course of the procedure for the allocation of greenhouse gas emission allowances under Article 10a of Directive 2003/87. 27 That refusal was based�on�the�first�subparagraph�of�Article�4(3)�of�Regulation�No�1049/2001,�28 under which access to a document is to be refused if its disclosure would seriously undermine a decision-making process in progress.

In�its�judgment,�the�Court�set�aside�the�judgment�under�appeal,�finding�that�the�General�Court�had�erred�in�law�in�its�interpretation�of�the�first�subparagraph�of�Article�4(3)�of�Regulation�No�1049/2001.�It�also�annulled�the�Commission’s decision to refuse access to the documents. The Court considered that the exception relating to the ‘decision-making process’ set out in that provision must be interpreted in a restrictive way, taking into account the public interest served by disclosure of the documents at issue and the fact that the information requested related to emissions into the environment. The Court also made clear that that exception must be construed as relating to decision-making, without covering the entire administrative procedure which led to the decision. Therefore, as regards documents directly relating to the matters dealt with in an administrative procedure, the mere reference to a risk of negative repercussions as a result of disclosure and to the possibility that interested parties�may�influence�the�procedure�do�not�suffice�to�prove�that�disclosure�of�internal�documents�would�seriously�undermine the decision-making process in progress.

Furthermore,�the�Court�pointed�out�that�the�requirement�for�a�restrictive�interpretation�of�the�first�subparagraph�of Article 4(3) of Regulation No 1049/2001 is all the more compelling where the documents communication of which is requested contain environmental information. However, Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect�the�confidentiality�of�the�proceedings�of�public�authorities,�where�such�confidentiality�is�provided�for�under�national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings. Accordingly, the fact that the administrative procedure at issue had not yet been closed on the date of adoption of the contested decision does not in itself establish that disclosure of the documents requested would seriously undermine the Commission’s decision-making process.

26/ �Judgment of the General Court of 11 December 2014, Saint-Gobain Glass Deutschland v Commission (T-476/12, EU:T:2014:1059).

27/ �Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).






4. NON-CONTRACTUAL LIABILITY OF THE EUROPEAN UNION

In its judgment of 4 April 2017, Ombudsman v Staelen (C-337/15 P, EU:C:2017:256), the Court, sitting as the Grand Chamber, ruled, in the context of an appeal, on the non-contractual liability of the European Union on account of a breach of the duty to act diligently by the European Ombudsman in her handling of a complaint. In the judgment under appeal, 29 the General Court had found that some breaches of the duty to act diligently, committed by the European Ombudsman in her handling of a complaint concerning the European Parliament’s management of a list of suitable candidates�in�an�open�competition,�amounted�per�se�to�sufficiently�serious�breaches�of�EU�law,�within�the�meaning�of�the�case-law�defining�the�conditions�under�which�the�European�Union�may�incur�non-contractual�liability.�As�a consequence of those breaches, the General Court had awarded the complainant, who appeared on the list at issue�as�a�successful�candidate,�EUR�7�000�as�damage�for�her�loss�of�confidence�in�the�office�of�the�Ombudsman�and her feeling of wasted time and energy.

After�recalling�the�duties�and�obligations�of�the�Ombudsman,�the�Court�first�of�all�held�that�the�General�Court�had erred in law by ruling that a ‘mere’ breach by the Ombudsman of the principle of diligence amounts to a sufficiently�serious�breach�that�could�result�in�non-contractual�liability�being�incurred�by�the�European�Union.�According to the Court, in order for it to be concluded that there is a such a breach, it is necessary to establish that, by failing to act with all the requisite care and caution, the Ombudsman gravely and manifestly disregarded the�limits�on�her�discretion�in�the�exercise�of�her�powers�of�investigation.�As�regards�the�finding�of�damage�made�by the General Court, the Court also ruled that the General Court had erred in law by characterising the loss of confidence�in�the�institution�of�the�Ombudsman�alleged�by�the�complainant�as�non-material�damage�that�may�be compensated. Since there was no legal basis for the General Court’s decision to order the Ombudsman to pay compensation, that decision was set aside by the Court.

However,�since�the�state�of�the�proceedings�permitted�a�final�judgment�in�the�case,�the�Court�held�that�it�was�apparent�from�the�documents�before�it�that�the�Ombudsman�had�indeed�committed�several�sufficiently�serious�breaches of her duty to act diligently in the conduct of her investigations, causing the complainant actual and certain non-material loss. Thus, the Court again ordered the Ombudsman to pay EUR 7 000 in damages in order to compensate that non-material loss in relation, in essence, to the feeling of ‘psychological harm’ which the complainant claimed to have experienced as a result of the way in which her complaint was dealt with.

In the judgment in Safa Nicu Sepahan v Council (C-45/15 P, EU:C:2017:402), delivered on 30 May 2017, the Court, sitting as the Grand Chamber, ruled on the right to receive compensation for damage caused by a decision to freeze funds adopted under the common foreign and security policy. By that judgment, the Court dismissed the appeals lodged by the Iranian company Safa Nicu Sepahan and the Council against the judgment of the General Court of 25 November 2014, 30 which, after annulling the restrictive measures for the freezing of funds to which the applicant was subject, 31 had awarded that company compensation in the amount of EUR 50 000 in respect of non-material damage sustained on account of the annulled measures, while dismissing its claims for compensation in respect of material damage caused. In its appeal, Safa Nicu Sepahan challenged both the dismissal of its claims

29/ �Judgment of the General Court of 29 April 2015, Staelen v Ombudsman (T-217/11, EU:T:2015:238).

30/ �Judgment of the General Court of 25 November 2014, Safa Nicu Sepahan v Council (T-384/11, EU:T:2014:986).

31/ �Those restrictive measures had been adopted by the Council against Iran to prevent nuclear proliferation pursuant to Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26) and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).







for compensation in respect of material damage and the amount of compensation awarded in respect of non-material damage.

As regards the compensation awarded in respect of non-material damage sustained, the Court concluded that the General Court had been right to consider that the infringement by the Council, for a period of almost three years, of its obligation to provide Safa Nicu Sepahan with the information and evidence substantiating the reasons for�the�adoption�of�the�restrictive�measures�at�issue�against�it�constituted�a�sufficiently�serious�breach�that�could�result in non-contractual liability being incurred by the European Union under the second paragraph of Article 340 TFEU. Although the annulment of unlawful restrictive measures is capable of constituting a form of reparation for�non-material�damage,�it�does�not�follow�from�this�that�that�form�of�reparation�is�necessarily�sufficient,�in�every�case, to ensure full reparation for such damage. The Court therefore found that the General Court had been right to assess ex aequo et bono�the�amount,�as�fixed,�of�the�compensation�in�respect�of�non-material�damage�to�which�Safa Nicu Sepahan was entitled.

In the second place, as regards the non-recognition by the General Court of liability on the part of the European Union in relation to the material damage allegedly sustained, the Court recalled that any damage for which compensation is sought under the second paragraph of Article 340 TFEU must be actual and certain and must flow�sufficiently�directly�from�the�unlawful�conduct�of�the�institutions.�Since�it�is�for�the�party�seeking�to�establish�the European Union’s liability to adduce conclusive proof as to the existence and extent of the damage it alleges and the existence of the causal link between that damage and the restrictive measures adopted, the Court found that the General Court had been right to conclude that Safa Nicu Sepahan’s claims were not substantiated to a sufficient�degree.�

IV. EU LAW AND NATIONAL LAW

On 10 October 2017, in its judgment in Farrell (C-413/15, EU:C:2017:745), the Court, sitting as the Grand Chamber, provided�clarification�on�the�conditions�governing�whether�the�provisions�of�the�Third�Directive�90/232�32 capable of�having�direct�effect�can�be�relied�on�against�a�private�law�body�on�which�a�Member�State�has�conferred�the�task that is the subject of Article 1(4) of the Second Directive 84/5, 33 consisting in paying compensation for damage�to�property�or�personal�injury�caused�by�an�unidentified�vehicle�or�vehicle�for�which�the�obligation�to�have�compulsory�motor�vehicle�liability�insurance�has�not�been�satisfied.�The�dispute�in�the�main�proceedings�concerned the payment of compensation, by the competent national body (the Motor Insurers Bureau of Ireland) for personal injuries suffered by the applicant in the main proceedings in a motor vehicle accident.

This judgment follows on from a previous judgment, Farrell, of 19 April 2007, 34 arising from the same main proceedings,�in�which�the�Court�held�that�Article�1�of�the�Third�Directive�90/232,�first,�precludes�national�legislation�whereby compulsory motor vehicle liability insurance does not cover liability in respect of personal injuries to persons travelling in a part of a motor vehicle which has not been designed and constructed with seating

32/ �Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33).

33/ �Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17), as amended by the Third Council Directive 90/232/EEC of 14 May 1990 (OJ 1990 L 129, p. 33).

34/ �Judgment of the Court of 19 April 2007, Farrell (C-356/05, EU:C:2007:229).





accommodation�for�passengers,�and,�secondly,�satisfies�all�the�conditions�necessary�for�it�to�produce�direct�effect�and accordingly confers rights upon which individuals might rely directly before the national courts. The Court nonetheless considered in that judgment that it was for the national court to determine whether that provision might be relied upon against a body such as that in issue in the main proceedings.

Following�that�judgment,�the�first�referring�court�took�the�view�that�the�competent�national�body�in�question�was�an emanation of the State and that, consequently, the applicant in the main proceedings had a right to obtain compensation from it. The competent national body subsequently brought an appeal against that judgment before the referring court in this case, contending that it was not an emanation of the State and that, accordingly, the�provisions�of�a�directive,�even�those�having�direct�effect,�which�had�not�been�transposed�into�national�law�could not be relied on against it. It was against that background that a further request for a preliminary ruling was�submitted�to�the�Court�seeking�clarification�as�regards�the�criteria�set�out�in�Foster�and�Others�35 for determining which types of bodies may be regarded as an emanation of the State.

The�Court�stated�that�those�criteria,�under�which�unconditional�and�sufficiently�precise�provisions�of�a�directive�may be relied on by an individual against organisations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, cannot be conjunctive. Article 288 TFEU, concerning the legal acts of the Union, must therefore be interpreted as not precluding the possibility that provisions of a directive that are capable of having direct�effect�may�be�relied�on�against�a�body�that�does�not�fulfil�all�the�criteria�listed�in�Foster and Others, cited above.

As regards the question whether that is the case for the body at issue in the main proceedings, the Court found that�provisions�of�a�directive�that�are�capable�of�having�direct�effect�may�be�relied�on�against�a�private�law�body�on which a Member State has conferred a task in the public interest, such as the payment of compensation for damage�to�property�or�personal�injury�caused�by�an�unidentified�vehicle�or�vehicle�for�which�the�obligation�to�have�compulsory�motor�vehicle�liability�insurance�has�not�been�satisfied,�and�which,�for�that�purpose,�possesses,�by statute, special powers, such as the power to oblige insurers carrying on motor vehicle insurance in the territory of the Member State concerned to be members of it and to fund it.

On 5 December 2017, in the judgment in M.A.S. and M.B. (C-42/17, EU:C:2017:936), the Court, sitting as the Grand Chamber, ruled on a request for a preliminary ruling from the Italian Constitutional Court seeking clarification on the scope of the obligation, established by the Court in Taricco and Others (C-105/14, EU:C:2015:555), 36 requiring national courts to disapply national provisions on limitation periods in the event of a finding of infringement of Article 325 TFEU.

In Taricco and Others, the Court had found that the Italian rules on limitation periods in respect of proceedings in�criminal�matters,�which�provide�that�the�limitation�period�applicable�to�tax�offences�in�the�field�of�VAT,�if�interrupted,�is�extended�by�only�one�quarter�of�the�original�period,�are�liable�to�have�an�adverse�effect�on�fulfilment�of the Member States’ obligations under Article 325(1) and (2) TFEU if those national rules prevent the imposition of�effective�and�dissuasive�penalties�in�a�significant�number�of�cases�of�serious�fraud�affecting�the�financial�interests�of�the�European�Union,�or�provide�for�longer�limitation�periods�in�respect�of�cases�of�fraud�affecting�the�financial�interests�of�the�Member�State�concerned�than�in�respect�of�those�affecting�the�financial�interests�of�the�European�Union.�The�Court�thus�held�that�it�was�for�the�national�courts,�in�such�cases,�to�give�full�effect�to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law.

35/ �Judgment of the Court of 12 July 1990, Foster and Others (C-188/89, EU:C:1990:313).

36/ �Judgment of the Court of 8 September 2015, Taricco and Others (C-105/14, EU:C:2015:555).







By its reference for a preliminary ruling, the Constitutional Court raised the question of a possible breach of the principle�that�offences�and�penalties�must�be�defined�by�law�which�might�follow�from�fulfilment�of�that�obligation�by�national�courts.�In�that�connection,�it�referred,�first,�to�the�substantive�nature�of�the�limitation�rules�in�the�Italian legal system, which means that those rules must be reasonably foreseeable by individuals at the time when�the�alleged�offences�are�committed�and�cannot�be�retroactively�altered�in peius, and, secondly, to the requirement that any national rules on criminal liability must be founded on a legal basis that is precise enough to delimit and guide the national court’s assessment.

The Court held, with reference to paragraph 53 of the judgment in Taricco and Others, that the competent national courts, when they have to decide to disapply the national provisions at issue, are required to ensure that the fundamental�rights�of�persons�accused�of�committing�criminal�offences�are�observed,�including�—�where�the�imposition�of�criminal�penalties�is�concerned�—�the�rights�of�defendants�flowing�from�the�principle�that�offences�and�penalties�must�be�defined�by�law.�

It�stated,�in�the�first�place,�that�the�principle�that�offences�and�penalties�must�be�defined�by�law,�enshrined�in�Article 49 of the Charter and forming part of the constitutional traditions common to the Member States, must be observed by the Member States when they implement EU law, which is the case where, in the context of their obligations under Article 325 TFEU, they provide for the application of criminal penalties for infringements relating to VAT. In the second place, the Court recalled that the right guaranteed in Article 49 of the Charter has the same meaning and scope as the right guaranteed by the ECHR, as interpreted by the European Court of Human Rights, which�has�held,�in�relation�to�the�requirements�that�follow�from�the�principle�that�offences�and�penalties�must�be�defined�by�law,�that�provisions�of�criminal�law�must�comply�with�certain�requirements�of�accessibility�and�foreseeability,�as�regards�both�the�definition�of�the�offence�and�the�determination�of�the�penalty.�In�addition,�the�Court�ruled�that�the�requirement�that�the�applicable�law�must�be�precise�means�that�the�law�must�clearly�define�offences�and�the�penalties�which�they�attract,�and�that�the�principle�of�non-retroactivity�of�the�criminal�law�means�in particular that a court cannot, in the course of criminal proceedings, impose a criminal penalty for conduct which�is�not�prohibited�by�a�national�rule�adopted�before�the�commission�of�the�alleged�offence�or�aggravate�the�rules on criminal liability of those against whom such proceedings are brought.

The Court also made clear that if the national court were to come to the view that the obligation to disapply the provisions�of�the�Criminal�Code�at�issue�conflicts�with�the�principle�that�offences�and�penalties�must�be�defined�by law, it would not be obliged to comply with that obligation, even if compliance with it allowed a national situation incompatible with EU law to be remedied. It is for the national legislature, in such a case, to take the measures necessary to lay down rules on limitation that enable compliance with the obligations under Article 325 TFEU.



V. PROCEEDINGS OF THE EUROPEAN UNION

As regards proceedings of the European Union, reference should be made to one judgment relating to the prohibition on the EU Courts from adjudicating ultra petita. Furthermore, the judgments in A and Others (C-158/14) and Rosneft (C-72/15), which are concerned in particular with the admissibility of a request for a preliminary ruling on�the�validity�of�measures�adopted�in�the�field�of�the�common�foreign�and�security�policy,�are�worthy�of�note.�37

By its judgment in British Airways v Commission (C-122/16 P, EU:C:2017:861), delivered on 14 November 2017, the�Court,�sitting�as�the�Grand�Chamber,�was�called�upon�to�provide�clarification�on�the prohibition on the EU Courts from adjudicating ultra petita. In the judgment under appeal, 38 which forms part of a dispute between the airline British Airways and the Commission, the General Court had raised of its own motion a plea involving a matter�of�public�policy�to�the�effect�that�the�decision�at�issue�was�vitiated�by�a�failure�to�state�adequate�reasons.�39 According to the General Court, the Commission had referred, in its statement of reasons, to one single and continuous infringement of Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the EC-Swiss Agreement. On the other hand, according to the operative part of the decision, there had been a separate single and�continuous�infringement�for�each�of�those�articles.�Nevertheless,�the�General�Court�had�held�that�that�finding�could not lead to the complete annulment of the decision at issue, since the annulment could not go beyond the form of order set out in the application initiating the action, which sought only annulment in part.

The�Court�confirmed�the�General�Court’s�judgment.�It�recalled�that�since�it�would�be�ultra�vires�for�the�EU�judicature�to rule ultra petita, the scope of the annulment granted may not go further than that sought by the applicant. The Court stated that although the authority of res judicata exerted by an annulling judgment attaches to both the operative part and the reasoning that constitutes the ratio decidendi of the judgment, it cannot entail annulment of an act or of part of an act not challenged before the EU judicature but alleged to be vitiated by the same illegality. Moreover, the fact that the court reviewing legality has jurisdiction to raise of its own motion a plea involving a matter of public policy does not mean for that matter that it is entitled to amend of its own motion the form of order sought by the applicant. Indeed, while the pleas raised by the applicant constitute the essential basis of the form of order sought in an application, they are, nonetheless, separate from the form of order sought, which�defines�the�limits�of�the�dispute�on�which�the�EU�courts�are�asked�to�rule.

Accordingly, by raising of their own motion a plea involving a matter of public policy which, a priori, has not been put forward by the parties, the EU courts do not go beyond the scope of the dispute that has been brought before them or, in any way, infringe the rules of procedure relating to the presentation in the application of the subject�matter�of�the�dispute�and�the�pleas�in�law.�The�position�would�be�different�if,�following�their�substantive�examination of the contested measure, those courts, on the basis of a plea raised of their own motion, were to annul a measure to an extent that went beyond the annulment sought in the form of order they were duly requested to make, on the ground that such an annulment was necessary to remedy the unlawfulness established of their own motion in carrying out their substantive analysis.

37/ �Those two judgments are presented in Section XX ‘Common foreign and security policy’.

38/ �Judgment of the General Court of 16 December 2015, British Airways v Commission (T-48/11, EU:T:2015:988).

39/ �Commission�Decision�C(2010)�7694�final�of�9�November�2010�relating�to�a�proceeding�under�Article�101�TFEU,�Article�53�of�the�EEA�Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 — Airfreight).





While�observing�that�it�was�not�disputed�that�the�defective�reasoning�identified�by�the�General�Court�in�the�instant�case had undermined British Airways’ rights of defence, the Court ruled that the fact that the General Court declined to review of its own motion the whole of the contested decision did not contravene the principle of effective�judicial�protection�provided�for�in�Article�47�of�the�Charter.�Although�the�judicial�review�provided�for�under�Article�263�TFEU,�together�with�the�unlimited�jurisdiction�in�respect�of�the�amount�of�the�fine�provided�for�under Article 31 of Regulation (EC) No 1/2003, 40 involves review by the EU courts of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount�of�a�fine,�the�fact�that�the�judicial�review�carried�out�by�the�EU�courts�is�limited�to�the�claims�of�the�parties,�as�set�out�in�the�forms�of�order�sought�in�their�written�pleadings,�is�not�contrary�to�the�principle�of�effective�judicial protection, as that principle does not require those courts to extend their review to cover aspects of a decision that have not been put in issue in the dispute before them.

VI. AGRICULTURE

The judgment in APVE and Others (C-671/15, EU:C:2017:860),�delivered�on�14�November�2017,�afforded�the�Court�the opportunity, sitting as the Grand Chamber, to rule on how the common agricultural policy (CAP) interacts with EU competition law. At�issue�in�the�main�proceedings�was�a�decision�by�the�French�Competition�Authority�finding�that practices implemented by producer organisations (POs) and associations of producer organisations (APOs), among�others,�in�the�endive�production�and�marketing�sector�were�anticompetitive�and�imposing�financial�penalties in that regard. An appeal having been brought before it against the judgment of the Court of Appeal varying that decision, the Court of Cassation enquired whether Article 101 TFEU, read in conjunction with a number�of�specific�provisions�of�secondary�law�adopted�in�relation�to�the�CAP,�41 had to be interpreted as meaning that�practices�whereby�POs,�APOs�and�the�other�organisations�concerned�collectively�fix�minimum�sale�prices,�concert on the quantities placed on the market and exchange strategic information, are excluded from the scope of the prohibition on agreements, decisions and concerted practices laid down in that article.

The�Court�recalled,�first�of�all,�that�in�pursuit�of�the�objectives�linked�to�the�introduction�of�the�CAP�and�the�establishment of a system of undistorted competition, Article 42 TFEU recognises that the CAP takes precedence over�the�objectives�of�the�Treaty�in�the�field�of�competition�as�well�as�the�EU�legislature’s�power�to�exclude�from�the scope of competition law practices which, outside the scope of the CAP, would have to be regarded as anticompetitive. In particular, in the light of the provisions of EU law relating to the fruit and vegetables sector, the necessary practices for POs and APOs to achieve one or more of the objectives assigned to them under the CAP (namely, ensuring that production is planned and adjusted to demand, concentrating supply and placing the products produced on the market, optimising production costs and stabilising producer prices) escape the prohibition on agreements, decisions and concerted practices laid down in Article 101(1) TFEU. However, the

40/ �Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

41/ �See Article 2 of Regulation No 26 of the Council of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition, 1959-1962 (I), p. 129); Article 11(1) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297, p. 1); Article 2 of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 2006 L 214, p. 7); Article 3(1) of�Council�Regulation�(EC)�No�1182/2007�of�26�September�2007�laying�down�specific�rules�as�regards�the�fruit�and�vegetable�sector� (OJ�2007�L�273,�p.�1);�and�the�first�paragraph�of�Article�122,�Article�175�and�Article�176�of�Council�Regulation�(EC)�No�1234/2007�of�22�October�2007�establishing�a�common�organisation�of�agricultural�markets�and�on�specific�provisions�for�certain�agricultural�products�(Single�CMO�Regulation) (OJ 2007 L. 299, p. 1).




scope of those exclusions is to be construed strictly and the common organisations of the markets in agricultural products are not a competition-free zone. Furthermore, practices that pursue the objectives of the CAP are subject to the principle of proportionality.

With regard to practices agreed between producers that are members of the same PO or APO recognised by a Member State within the framework of the implementation of the CAP, the Court noted that only forms of coordination or concertation between the members of the same PO or APO that are actually and strictly connected to the pursuit of the objectives assigned to the PO or APO concerned can escape the prohibition on agreements, decisions and concerted practices. That may be the case, inter alia, of exchanges of strategic information, the coordination of the quantities of agricultural products put on the market and the coordination of the pricing policy of individual agricultural producers, if those practices in fact seek to achieve, and are strictly proportionate to,�those�objectives.�By�contrast,�the�collective�fixing�of�minimum�sale�prices�within�a�PO�or�an�APO�may�not�be�regarded as necessary for the sound operation of the common organisation of the market concerned, or as proportionate to the objectives of stabilising prices and concentrating supply, where it does not allow producers selling�their�own�products�themselves�to�do�so�at�a�lower�price�than�the�minimum�prices�and�has�the�effect�of�reducing the already low level of competition in the markets for agricultural products.

VII. FREEDOMS OF MOVEMENT

1. FREEDOM OF MOVEMENT FOR WORKERS

In its judgment in Erzberger (C-566/15, EU:C:2017:562), delivered on 18 July 2017, the Grand Chamber of the Court ruled on the compatibility with the freedom of movement for workers, guaranteed by Article 45 TFEU, of a number of restrictions provided for in German legislation on employee participation which applied to participation in the elections of workers’ representatives to the supervisory board of a company.�Specifically,�by�restricting�the�right�to�vote�and�to�stand as a candidate in those elections to employees of establishments located in the national territory, that legislation deprives of those rights employees who, in particular, leave their employment in an establishment located in Germany to take up employment with a subsidiary belonging to the same group located in another Member State, namely workers exercising their right under Article 45 TFEU.

The Court held that the loss of the abovementioned rights, incurred by those workers, cannot be held to constitute an impediment to the freedom of movement for workers. EU primary law cannot guarantee to a worker that moving to a Member State other than his Member State of origin will be neutral in social terms, since, given the disparities between the Member States’ schemes and legislation, such a move may be more or less advantageous for the person concerned in that regard. Therefore, the freedom of movement for workers does not grant to that worker the right to rely, in the host Member State, on the conditions of employment which he enjoyed in the Member�State�of�origin�under�the�national�legislation�of�the�latter.�Consequently,�EU�law�does�not,�in�the�field�of�representation and collective defence of the interests of workers in the management or supervisory bodies of a�company�established�under�national�law�—�a�field�which,�to�date,�has�not�been�harmonised�or�even�coordinated�at Union level — prevent a Member State from providing that the legislation it has adopted be applicable only to workers employed by establishments located in its national territory.




2. FREEDOM OF ESTABLISHMENT

On 14 September 2017, the Court gave judgment in Trustees of the P Panayi Accumulation & Maintenance Settlements (C-646/15, EU:C:2017:682), in which it ruled that the provisions of the TFEU relating to freedom of establishment preclude the imposition of tax, such as that provided for under UK law in the main proceedings, on unrealised gains in value of assets held in trust on the transfer of the place of residence of the majority of the trustees to another Member State.

In�the�instant�case,�UK�law�trusts�had�been�created�in�1992�by�a�Cypriot�national�for�the�benefit�of�his�children�and other family members. When the trusts were created, the Cypriot national resided with his family in the United Kingdom, as did the initial trustees. In 2004, the Cypriot national and his spouse resigned as trustees and three new trustees were appointed as replacements, all resident in Cyprus. Since the majority of the trustees no longer resided in the United Kingdom, the UK tax authorities considered that the administration of the trusts had moved to Cyprus. They took the view that such relocation was tantamount to an immediate disposal, before the relocation date, of the assets comprised in the trust and their immediate reacquisition at market value, which was liable to give rise to a charge to tax on unrealised gains in value.

As�regards�the�compatibility�of�such�taxation�with�EU�law,�the�Court�first�confirmed�that�the�trusts�at�issue�may�rely on freedom of establishment in so far as they fall within the scope of ‘other legal persons’ within the meaning of�the�second�paragraph�of�Article�54�TFEU.�After�also�confirming�that�the�freedom�of�establishment�applies�in�a situation where a Member State taxes gains in value of assets held in trust by reason of the transfer of the place of administration of the trust to another Member State, the Court examined whether the contested taxation was compatible�with�that�freedom.�In�that�connection,�the�Court�first�of�all�found�that�there�was�a�restriction�on�freedom�of�establishment,�since�the�difference�in�tax�treatment�between�trusts�which�retain�their�place�of�administration in the United Kingdom and those whose place of administration is transferred to another Member State�is,�in�particular,�capable�of�deterring�such�transfers.�As�regards�the�possible�justification�for�that�restriction�by reasons in the public interest, the Court considered, secondly, that although the legislation at issue is a suitable means of ensuring the preservation of the allocation of powers of taxation between the Member States, it nevertheless goes beyond what is necessary to achieve the objective of preserving the allocation of national powers of taxation in so far as it provides only for the immediate payment of the tax concerned. That legislation was�therefore�considered�to�constitute�an�unjustified�restriction�on�freedom�of�establishment.

In its judgment in Polbud-Wykonawstwo (C-106/16, EU:C:2017:804), delivered on 25 October 2017, the Grand Chamber of the Court held that Articles 49 and 54 TFEU apply to the transfer of the only registered office of a company incorporated under the law of one Member State to the territory of another Member State, even if that company conducts its main, if not entire, business in the first Member State and retains its real head office there. At issue in the main proceedings was the decision to refuse the application submitted by Polbud-Wykonawstwo (‘Polbud’), a limited liability company governed by Polish law, to remove it from the Polish commercial register following the transfer of�its�registered�office�to�Luxembourg.�Polish�legislation�provides�for�the�mandatory�liquidation�of�a�national�company�when�it�transfers�its�registered�office�abroad.�The�removal�of�Polbud�from�the�Polish�commercial�register�had therefore been refused on the ground that the documents relating to its liquidation had not been submitted. Polbud challenged that refusal arguing that it had not lost its legal personality and continued to exist as a company incorporated�under�Luxembourg�law.�The�Sąd�Najwyższy�(Polish�Supreme�Court)�therefore�referred�a�question�to the Court for a preliminary ruling concerning the applicability of freedom of establishment to the instant case and the compatibility of the Polish legislation with EU law.

First�of�all,�the�Court�noted�that�Articles�49�and�54�TFEU�extend�the�benefit�of�freedom�of�establishment�to�companies�or�firms�formed�in�accordance�with�the�legislation�of�a�Member�State�and�having�their�registered�





office,�central�administration�or�principal�place�of�business�within�the�European�Union.�The�Court�made�clear�that this fundamental freedom encompasses the right of a company, like Polbud, formed in accordance with the legislation of a Member State to convert itself into a company governed by the law of another Member State, provided�that�the�conditions�laid�down�by�the�legislation�of�that�other�Member�State�are�satisfied�and,�in�particular,�that the test adopted by the latter State to determine the connection of a company to its national legal order is satisfied.

Secondly, the Court ruled that Articles 49 and 54 TFEU preclude national legislation, such as that as issue here, whereby�the�transfer�of�the�registered�office�of�a�company�is�dependent�on�its�mandatory�liquidation.�According�to the Court, such legislation is liable to impede, if not prevent, the cross-border conversion of a company and therefore constitutes a restriction on freedom of establishment. The Court accepted that such a restriction may, as�a�rule,�be�justified�by�overriding�reasons�in�the�public�interest.�However,�it�considered�that�the�Polish�legislation�at issue goes beyond what is necessary to achieve the objectives of protecting the interests of creditors, minority shareholders and employees. In particular, the Court pointed out that that legislation prescribes, in general, mandatory liquidation, there being no consideration of the actual risk of detriment to those interests and no possibility of choosing less restrictive measures capable of protecting them.

Lastly,�the�Court�rejected�the�justification�based�on�the�objective�of�preventing�abusive�practices.�In�its�view,�the�fact�that�either�the�registered�office�or�real�head�office�of�a�company�was�established�in�accordance�with�the�legislation�of�a�Member�State�for�the�purpose�of�enjoying�the�benefit�of�more�favourable�legislation�does�not,�in�itself,�constitute�abuse.�Moreover,�the�mere�fact�that�a�company�transfers�its�registered�office�from�one�Member�State to another cannot be the basis for a general presumption of fraud and cannot justify a measure that adversely�affects�the�exercise�of�a�fundamental�freedom�guaranteed�by�the�Treaty.�In�this�case,�the�Court�took�the view that the general obligation to implement a liquidation procedure amounts to establishing such a presumption, with the result that the national legislation is disproportionate in the light of that objective.

3. FREEDOM TO PROVIDE SERVICES

On 13 June 2017, in the judgment in The Gibraltar Betting and Gaming Association (C-591/15, EU:C:2017:449), the Grand Chamber of the Court ruled on the interpretation of Articles 56 and 355(3) TFEU. This judgment was delivered in the context of proceedings in which a trade association of Gibraltar-based gambling operators had challenged the compatibility with EU law, particularly the provisions on the freedom to provide services, of a new tax regime adopted by the United Kingdom targeting, inter alia, remote gambling. In order to determine whether or not Article 56 TFEU could be relied on in this case, the Court was invited to determine whether the provision of gambling services by operators established in Gibraltar to customers in the United Kingdom concerned, under EU law, a ‘purely internal situation’.

The�Court�first�of�all�pointed�out�that�Gibraltar�is�a�European�territory�for�whose�external�relations�a�Member�State is responsible, namely the United Kingdom. EU law applies to that territory under Article 355(3) TFEU, subject to the exclusions expressly provided for in the 1972 Act of Accession, which do not, however, cover freedom to provide services.

Next, the Court examined whether the provision of services at issue constitutes a ‘purely internal situation’, that is�to�say�a�situation�which�is�confined�in�all�respects�within�a�single�Member�State.�In�that�regard,�it�considered�that although it is true that Gibraltar does not form part of the United Kingdom, that fact is not decisive in determining whether two territories must, for the purposes of the applicability of the provisions on the four freedoms, be treated as a single Member State. Furthermore, to treat trade between Gibraltar and the United Kingdom in the same way as trade between Member States would be tantamount to denying the connection,




recognised in Article 355(3) TFEU, between that territory and that Member State. It follows, in the Court’s view, that the provision of services by operators established in Gibraltar to persons established in the United Kingdom constitutes, under EU law, a purely internal situation to which the provisions of the TFEU on freedom to provide services do not apply.

Lastly, the Court made clear that that interpretation of Article 355(3) TFEU, in conjunction with Article 56 TFEU, has�no�effect�on�the�status�of�the�territory�of�Gibraltar�under�international�law�and�cannot,�therefore,�be�understood�as undermining the separate and distinct status of Gibraltar.

In its judgment in Asociación Profesional Elite Taxi (C-434/15, EU:C:2017:981), delivered on 20 December 2017, the Grand Chamber of the Court ruled on whether an intermediation service to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys falls within the scope of Article 56 TFEU on the freedom to provide services and Directives 2006/123 42 and 2000/31. 43 In this case, a professional taxi drivers’ association had brought proceedings seeking a declaration from a Spanish court that the activities of Uber Systems Spain SL infringed national legislation on unfair competition. Taking the view that Uber’s practices cannot be regarded as unfair practices if its activities fall within the scope of Directive 2006/123 or Directive 98/34, 44 the national court decided to refer a question to the Court for a preliminary�ruling�concerning�the�classification�of�the�activities�of�Uber�at�issue�in�the�main�proceedings�in�the�light of those directives as well as Article 56 TFEU.

At the outset, the Court pointed out those activities are more than an intermediation service consisting of connecting, by means of a smartphone application, a non-professional driver using his own vehicle with a person who�wishes�to�make�an�urban�journey.�The�provider�of�that�intermediation�service�simultaneously�offers�urban�transport services, which it renders accessible, in particular, through software tools and whose general operation it�organises�for�the�benefit�of�persons�who�wish�to�accept�that�offer.�The�service�is�based�on�the�selection�of�non-professional�drivers,�to�whom�Uber�provides�an�application�without�which,�first,�those�drivers�would�not�be�led to provide transport services and, secondly, persons who wish to make an urban journey would not use the services�provided�by�those�drivers.�Furthermore,�Uber�exercises�decisive�influence�over�the�conditions�under�which those services are provided, particularly over the maximum fare and the quality of the vehicles and drivers.

The intermediation service at issue in the main proceedings must therefore be regarded as forming an integral part of an overall service whose main component is a transport service. It follows, according to the Court, that the service is not an ‘information society service’ within the meaning of Directive 98/34, to which Directive 2000/31 refers,�but�‘a�service�in�the�field�of�transport’�within�the�meaning�of�Article�58(1)�TFEU,�under�which�the�free�movement of such services is governed by the provisions of the title relating to transport and of Article 2(2)(d) of�Directive�2006/123,�which�provides�that�that�directive�does�not�apply�to�services�in�the�field�of�transport.�The�Court therefore concluded that such an intermediation service must be excluded from the scope of Article 56 TFEU, Directive 2006/123 and Directive 2000/31.

42/ �Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

43/ �Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (OJ 2000 L 178, p. 1).

44/ �Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in�the�field�of�technical�standards�and�regulations�and�of�rules�on�Information�Society�services�(OJ�1998�L�204,�p.�37),�as�amended�by�Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18).




It also follows that since the EU legislature has not adopted, on the basis of the title relating to transport, common rules relating to non-public urban transport services and services that are inherently linked to those services, such as the intermediation service at issue, as EU law currently stands, it is for the Member States to regulate the conditions under which such intermediation services are to be provided in conformity with the general rules of the TFEU.

VIII. BORDER CONTROLS, ASYLUM AND IMMIGRATION

1. ASYLUM POLICY

On account of the magnitude of the global migration crisis which has been holding sway for some years now and, in consequence, the arrival of an exceptionally high number of applicants for international protection in the European Union, the Court has had to deal with numerous cases relating to EU asylum policy. Nine such cases merit special attention: one concerning Directive 2004/83 45 and eight concerning Regulation No 604/2013 46 (‘the�Dublin�III�Regulation’).�Specifically,�the�judgment�interpreting�Directive�2004/83�deals�with�the�clause�excluding�persons from refugee status on account of their participation in acts contrary to the purposes and principles of the�United�Nations.�As�regards�the�judgments�interpreting�the�Dublin�III�Regulation,�the�first�deals�with�whether�the Member States are under an obligation to issue a visa on humanitarian grounds, with a view to the subsequent submission of an application for international protection on its territory. In six other cases, applicants for international protection sought to challenge, on various grounds, the decision of the competent authorities of one Member State to transfer them to another Member State so that their application for international protection could be examined there. The last case concerns the lawfulness of provisional measures adopted by the Council in order to relocate asylum applicants in unprecedented circumstances.

1.1. Refugee status

In its judgment in Lounani (C-573/14, EU:C:2017:71) of 31 January 2017, the Grand Chamber of the Court examined, in the light of Article 12(2)(c) and Article 12(3) of Directive 2004/83, the conditions under which an applicant may be excluded from refugee status on account of his participation in acts contrary to the purposes and principles of the United Nations. In the main proceedings, a Moroccan national had been convicted in Belgium for having participated in the activities of a terrorist group, as a member of its leadership. The conviction was based in particular on the fact that, although the person concerned had not committed, attempted to commit or threatened to commit a

45/ �Council�Directive�2004/83/EC�of�29�April�2004�on�minimum�standards�for�the�qualification�and�status�of�third�country�nationals�or�stateless�persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).

46/ �Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person (OJ 2013 L 180, p. 31).




terrorist act himself, he had nevertheless provided logistical support to the group and had actively participated in the organisation of a network for sending volunteers to Iraq. Following that conviction, the person concerned applied for asylum, claiming that he feared persecution if he were to return to his country of origin due to the likelihood of being regarded in the future as a radical Islamist and jihadist by the Moroccan authorities. Against that background, the referring court enquired whether the refugee status exclusion clause, provided for in Article 12 of Directive 2004/83, could apply to such an asylum applicant.

In�its�judgment,�the�Court�first�of�all�found�that�the�concept�of�‘acts�contrary�to�the�purposes�and�principles�of�the�United�Nations’�is�not�confined�to�the�commission�of�terrorist�acts.�Indeed,�clarification�of�that�concept�can�be found inter alia in the resolutions of the United Nations relating to measures combating terrorism. Pursuant to those resolutions, the application of the exclusion from refugee status on account of such acts can also extend to those who engage in activities consisting in the recruitment, organisation, transportation or equipment of individuals who travel to a State other than their State of residence or nationality for the purpose of, among other things, the perpetration, planning or preparation of terrorist acts. Furthermore, it is not necessary for the�applicant�for�international�protection�to�have�been�convicted�of�one�of�the�terrorist�offences�referred�to�in Article 1 of Framework Decision 2002/475, 47�which�aims�to�approximate�the�definition�of�terrorist�offences�in all the Member States.

Secondly,�the�Court�recalled�that�the�final�assessment�of�an�application�for�international�protection�falls�to�the�competent national authorities, subject to review by the national courts, and that those authorities are required to�conduct,�for�each�individual�case,�an�assessment�of�the�specific�facts�brought�to�their�attention�with�a�view�to�determining whether there are serious reasons for considering that the acts committed by the applicant for international protection fall within the scope of that particular exclusion. As to the factors to be taken into consideration in the instant case, the Court drew attention to the fact that the person concerned was a member of the leadership of a terrorist group that operated internationally. The fact that that group may not have perpetrated any terrorist acts was irrelevant. The Court also highlighted the particular importance to be attached to�the�existence�of�a�final�conviction�by�the�courts�of�a�Member�State�on�a�charge�of�participation�in�the�activities�of a terrorist group.

To conclude, the Court ruled that acts such as those of which the person concerned had been convicted may justify his exclusion from refugee status, even though it is not established that he committed, attempted to commit or threatened to commit a terrorist act.

1.2. Handling of applications for international protection

In the judgment in C. K. and Others (C-578/16 PPU, EU:C:2017:127), delivered on 16 February 2017, the Court provided�clarification�on the discretionary clause laid down in Article 17(1) of the Dublin III Regulation which, by way of exception, allows a Member State to examine an application for international protection lodged with it even if such examination is not its responsibility under the criteria laid down in that regulation. In this case, a Syrian national and an Egyptian national had entered the territory of the European Union by means of a visa issued by Croatia, before submitting an application for asylum in Slovenia. The Slovenian authorities subsequently sent a request to the Croatian authorities to take charge of the persons concerned because Croatia was the Member State responsible for examining their applications for international protection, pursuant to Article 12(2) of the Dublin III Regulation. Croatia complied with that request. However, since the Syrian national was pregnant, the transfer of the persons

47/ �Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (OJ 2002 L 164, p. 3).




concerned was postponed until the birth of the child. Those persons subsequently objected to their transfer to Croatia, arguing that it would have negative consequences for the state of health of the Syrian national (who had had�a�high-risk�pregnancy�and�had�suffered�psychiatric�difficulties�since�giving�birth),�also�likely�to�affect�the�well-being of her newborn child, and that they had been victims of racially motivated remarks and abuse in Croatia. In the light of, in particular, the state of health of the Syrian national, the Court ruled under the urgent procedure.

The�Court�first�of�all�stated�that�the�question�of�the�application,�by�a�Member�State,�of�the�discretionary�clause�is not governed solely by national law and the interpretation given to it by the constitutional court of that Member State, but is a question concerning the interpretation of EU law, within the meaning of Article 267 TFEU.

Applying the case-law in N. S. and Others, 48 the Court found that even where there are no substantial grounds for�believing�that�there�are�systemic�flaws�in�the�Member�State�responsible�for�examining�the�application�for�asylum, the transfer of an applicant can take place only in conditions which exclude the possibility that that transfer�might�result�in�a�real�and�proven�risk�of�the�person�concerned�suffering�inhuman�or�degrading�treatment,�prohibited under Article 4 of the Charter of Fundamental Rights. The Court also stated that the transfer of an applicant for asylum with particularly serious mental or physical illness would amount to such treatment if the transfer�were�to�entail�a�real�and�proven�risk�of�a�significant�and�permanent�deterioration�in�the�state�of�health�of the person concerned. According to the Court, it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions for the transfer to take place in�conditions�enabling�appropriate�and�sufficient�protection�of�that�person’s�state�of�health.�If,�taking�into�account�the�particular�severity�of�the�illness�of�the�applicant�for�asylum�concerned,�the�precautions�taken�are�not�sufficient�to�ensure�that�his�transfer�does�not�entail�a�real�risk�of�a�significant�and�permanent�worsening�of�his�state�of�health, it is for the authorities of the Member State concerned to suspend the enforcement of the transfer of the person�concerned�for�such�time�as�his�state�renders�him�unfit�for�such�a�transfer.�Furthermore,�if�the�Member�State notes that the state of health of the applicant for asylum concerned is not going to improve in the short term, or that the protracted suspension of the procedure risks worsening the state of health of the person concerned, it may choose to conduct its own examination of that person’s application by making use of the ‘discretionary clause’. The Court nonetheless concluded that Article 17(1) of the Dublin III Regulation, read in the light of Article 4 of the Charter, cannot be interpreted, in a situation such as that at issue in the main proceedings, as implying an obligation on that Member State to make use of it in that way. That being the case, if the state of health of the applicant for asylum concerned does not enable the requesting Member State to carry out the transfer before the expiry of the period of six months provided for in Article 29(1) of the Dublin III Regulation, the Member State responsible would, in the Court’s view, be relieved of its obligation to take charge of the person concerned�and�responsibility�would�then�be�transferred�to�the�first�Member�State.

In its judgment in X and X (C-638/16 PPU, EU:C:2017:173), delivered on 7 March 2017 under the urgent preliminary ruling procedure, the Grand Chamber of the Court considered the obligations on a Member State to which a visa application has been made under Article 25(1)(a) of the Visa Code 49 through a diplomatic post located in the territory of a third country, with a view to lodging, immediately upon arrival in that Member State, an application for international protection. In the instant case, a Syrian couple and their three minor children, living in Syria, had submitted applications for humanitarian visas at the Belgian Embassy in Lebanon, before returning to Syria. The purpose of the applications was to obtain visas with limited territorial validity, in order to enable the family to leave Syria

48/ �Judgment of the Court of 21 December 2011, N. S. and Others (C-411/10 and C-493/10, EU:C:2011:865).

49/ �Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (OJ 2009 L 243, p. 1), as amended by Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 (OJ 2013 L 182, p. 1).





and apply for asylum in Belgium at a later stage. The applicants emphasised, among other things, the deteriorating security situation in Syria and the fact that they were at risk of persecution on account of their belonging to the Orthodox Christian community. Their applications were rejected. Proceedings having been brought before it challenging that rejection, the referring court questioned the extent of Member States’ discretion in such circumstances,�having�regard�in�particular�to�the�obligations�flowing�from�the�Charter,�especially�Articles�4�and�18.

The�Court�first�of�all�recalled�that�the�Visa�Code�was�intended�for�the�issuing�of�visas�for�stays�on�the�territories�of Member States not exceeding 90 days in any 180-day period. It is obvious that the purpose of the Syrian family’s�visa�applications�differed�from�that�of�a�short-term�visa,�since�the�family�intended�to�apply�for�asylum�in Belgium immediately upon arrival there and obtain a residence permit with a period of validity not limited to 90 days. Consequently, the Court considered that such applications, even if formally submitted on the basis of the Visa Code, fall outside the scope of that code. In addition, since no measure has been adopted, to date, by the EU legislature with regard to the conditions governing the issue by Member States of long-term visas and residence permits to third country nationals on humanitarian grounds, those applications fall solely within the scope of national law. Therefore, since that situation is not governed by EU law, the provisions of the Charter do not apply to it.

The Court added that to conclude otherwise would be tantamount to allowing third country nationals to lodge applications for visas in order to obtain international protection in the Member State of their choice, which would undermine the general structure of the system established by the Dublin III Regulation. To conclude otherwise would also mean that Member States are required, on the basis of the Visa Code, to allow such third country nationals to submit applications for international protection to the diplomatic posts of Member States that are within the territory of a third country. The EU measures governing the procedures for applications for international protection do not impose such an obligation and, on the contrary, exclude from their scope applications made to the representations of Member States.

The judgment in Al Chodor and Others (C-528/15, EU:C:2017:213), delivered on 15 March 2017, concerns the notion of objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond.�That�notion�is�mentioned�in�Article�2(n)�of�the�Dublin�III�Regulation,�which�defines�‘risk of absconding’. Under Article 28(2) of that regulation, an applicant for international protection may be detained where�there�is�a�significant�risk�of�absconding,�but�only�on�the�basis�of�an�individual�assessment�and�in�so�far�as�detention�is�proportional�and�other�less�coercive�alternative�measures�cannot�be�applied�effectively.�

In this case, two Iraqi nationals had been subject to a police check in the Czech Republic which revealed, after consulting the Eurodac database, that they had submitted an asylum application in Hungary. Pending their transfer to that Member State, the persons concerned were placed in detention on account of the risk that they might abscond. However, their detention was held to be unlawful because Czech legislation did not lay down the objective criteria for assessing the risk of absconding.

The�Court�recalled�that�although�regulations�generally�have�immediate�effect�in�the�national�legal�systems,�some�of their provisions may necessitate, for their implementation, the adoption of measures of application by the Member States. That is the case with regard to Article 2(n) of the Dublin III Regulation, which explicitly requires that�the�objective�criteria�in�issue�be�‘defined�by�law’.�The�Court�therefore�ruled�that�the�elaboration�of�those�criteria is a matter for national law, that the criteria must be established in a binding provision of general application, and that the absence of such a provision leads to the inapplicability of Article 28(2) of that regulation. The Court pointed�out�in�that�regard�that�the�existence�of�settled�case-law�confirming�a�consistent�administrative�practice�cannot�suffice.�




In reaching that conclusion, the Court made clear, in particular, that the detention of applicants for international protection constitutes a serious interference with their right to liberty, enshrined in Article 6 of the Charter. Accordingly, such detention must be subject to compliance with strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness. Only a provision of general application is�capable�of�meeting�those�requirements.�Such�a�provision�sets�out�the�limits�of�the�flexibility�of�national�authorities�in�the�assessment�of�the�circumstances�of�each�specific�case�in�a�manner�that�is�binding�and�known�in�advance.�Furthermore, criteria established by a binding provision are best placed for the external direction of the discretion of those authorities for the purposes of protecting applicants against arbitrary deprivations of liberty.

In its judgments in Mengesteab (C-670/16, EU:C:2017:587) and Shiri (C-201/16, EU:C:2017:805), the Grand Chamber of the Court ruled that the procedures for taking charge of and taking back applicants for international protection must�be�carried�out�in�compliance�with�a�series�of�specified�time�limits,�and�that�those�time�limits�are�intended�to provide a framework for those procedures and also contribute to determining the Member State responsible for examining their application, so that it must be possible for compliance with them to be subject to judicial review.

Specifically,�in�the�first�case,�which�was�decided�under�the�expedited�procedure�and�gave�rise�to�the�judgment�of 26 July 2017 in Mengesteab,�the�Court�provided�clarification�on the time limits laid down in Article 21(1) of the Dublin III Regulation, which establish the framework for the making of a take charge request. That article provides that if such a request is not made within three months from the date on which the application for international protection was lodged or, in the case of a Eurodac hit, within two months of receiving that hit, responsibility for examining the application lies with the Member State in which the application was lodged. In the case in point, an Eritrean national had submitted a request for asylum in September 2015 with the German authorities, which had then issued�a�certificate�of�registration�to�him,�bearing�in�mind�that�German�law�distinguishes�between�submitting�a�request�for�asylum,�resulting�in�such�a�certificate�being�issued,�and�lodging�a�formal�application�for�asylum.�In�January�2016�at�the�latest,�the�competent�German�authorities�received�the�original�of�the�applicant’s�certificate,�a�copy�of�it�or�the�main�information�which�it�contained.�In�July�2016,�the�person�concerned�was�finally�able�to�lodge�a�formal�application�for�asylum.�However,�as�a�search�in�the�Eurodac�system�revealed�that�his�fingerprints�had been taken in Italy, the German authorities requested, in August 2016, that the Italian authorities take charge of�him.�Thus,�although�the�applicant’s�certificate�had�reached�the�competent�authority�more�than�three�months�before the take charge request was made, his formal asylum application was lodged less than three months before that request was made. In November 2016, an order was issued to transfer the applicant to Italy.

First of all, as regards the consequences of failing to comply with the time limits set out in Article 21(1) of the Dublin III Regulation, the Court stated that a decision to transfer a person to a Member State other than the one with which the application for international protection was lodged cannot validly be adopted once those time limits have expired. It also ruled that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a time limit laid down in that article, even if the requested Member State is willing to take charge of that applicant. Thus, the court dealing with the action may satisfy itself that the contested transfer decision was adopted following a proper application of the take charge procedure.

Secondly,�as�regards�the�relationship�between�the�two�time�limits�laid�down�in�the�first�and�second�subparagraphs�of Article 21(1) of the Dublin III Regulation, the Court found that a take charge request cannot validly be made more than three months after the application for international protection has been lodged, even if that request is made within two months of receipt of a Eurodac hit. The receipt of that hit does not permit the three-month period to be exceeded in order to make a take charge request after an application for international protection has been lodged.





Thirdly, as regards the point in time when the three-month period begins to run, namely the date on which the application for international protection was lodged for the purpose of Article 20(2) of the Dublin III Regulation, the Court held that such an application is deemed to have been lodged if a written document, prepared by a public authority and certifying that a third country national has requested international protection, has reached the authority responsible for implementing the obligations arising from that regulation and, as the case may be, if�only�the�main�information�contained�in�such�a�document�has�reached�that�authority.�In�order�to�be�able�effectively�to start the process of determining the responsible Member State, the competent authority needs to be informed, with certainty, of the fact that a third country national has requested international protection, and it is not necessary�for�the�written�document�prepared�for�that�purpose�to�have�a�precisely�defined�form�or�for�it�to�include�additional information relevant to the application of the criteria laid down by that regulation or, a fortiori, to the examination of the application for international protection. Nor is it necessary, at that stage of the procedure, for a personal interview already to have been organised.

In the second case, which gave rise to the judgment in Shiri of�25�October�2017,�the�Court�provided�clarification�on the time limits laid down in Article 29(1) and (2) of the Dublin III Regulation, which establish the framework for the decision to transfer an applicant for international protection. That article provides, in particular, that if such a transfer does not take place within six months of acceptance of the request to take charge of or take back the person�concerned,�or�of�the�final�decision�on�an�appeal�having�suspensive�effect,�responsibility�is�then�transferred�to the requesting Member State. In the main proceedings, an Iranian national had challenged the decision to refuse his application for international protection in Austria and to remove him to Bulgaria where he had lodged an earlier application. In March 2015, the Austrian authorities requested that the Bulgarian authorities take charge of him, to which they agreed. In July 2015, an order was issued to transfer the applicant to Bulgaria. However, since the transfer did not take place within the six-month time limit, the person concerned argued that the Republic of Austria had become the responsible Member State.

In�reply�to�the�question�from�the�national�court�as�to�whether�the�expiry�of�the�six-month�time�limit�is�sufficient�in�itself�to�result�in�such�a�transfer�of�responsibility�between�Member�States,�the�Court,�in�the�first�place,�stated�that if the applicant’s transfer is not carried out within that time limit, responsibility for examining the application for international protection is transferred automatically to the requesting Member State, without it being necessary for the Member State responsible to refuse to take charge of or take back the person concerned.

In�the�second�place,�the�Court�considered�that�an�applicant�for�international�protection�must�have�an�effective�and rapid remedy available to him which enables him to rely on the expiry of that six-month period, irrespective of whether that period expired before or after the transfer decision was adopted. Unlike the time limits providing a framework for the making of a take charge request (at issue in Mengesteab), the periods set out in Article 29 of the Dublin III Regulation are intended to provide a framework not only for the adoption but also for the implementation of the transfer decision. They may therefore expire after the adoption of that decision. In this instance, the right provided for in Austrian legislation to plead circumstances subsequent to the adoption of the transfer decision, in�an�action�brought�against�that�decision,�meets�the�obligation�to�provide�for�an�effective�and�rapid�remedy�laid�down, in particular, in Article 47 of the Charter.

1.3. International protection in the event of a migration crisis

In the judgments in Jafari (C-646/16, EU:C:2017:586) and A.S. (C-490/16, EU:C:2017:585), delivered on 26 July 2017, the�first�of�which�was�decided�under�the�expedited�procedure�and�the�second�of�which�was�accorded�priority�treatment, the Grand Chamber was required to decide whether the arrival of an unusually large number of third country nationals seeking international protection affected the rules on the issuing of visas and the determination of the





Member State responsible for examining applications for international protection. In the disputes in the main proceedings, the members of an Afghan family and a Syrian national had crossed the border between Serbia and Croatia. The Croatian authorities had then organised transport for those persons to the Slovenian border with the aim of assisting them in moving on to other Member States in order to make an application for international protection. The Afghan family submitted such an application in Austria while the Syrian national did so in Slovenia. However, the Slovenian authorities requested that the Croatian authorities take charge of the Syrian national since, under Article 13(1) of the Dublin III Regulation, responsibility lies with the Member State whose external border has been crossed irregularly. The Austrian authorities, for their part, requested that the Croatian authorities take charge of the Afghan family on the basis of Article 21 of that regulation. The Afghan family and the Syrian national challenged the decision to refuse their applications for international protection and to transfer them to Croatia. The national courts concerned referred a question to the Court on the subject of the internal relationship between the relevant provisions of the Dublin III Regulation.

In its judgment in Jafari,�the�Court�first�of�all�dealt�with�the�question�whether�the�fact�that�the�Croatian�authorities�had tolerated the entry into their territory of persons seeking transit through that Member State in order to lodge an application for international protection in another Member State was tantamount to the issuing of a visa within the�meaning�of�Article�12�of�the�Dublin�III�Regulation.�In�that�regard,�the�Court�ruled�that,�by�definition,�a�visa�is�the ‘authorisation or decision of a Member State’ which is ‘required for transit or entry’ into the territory of that Member�State�or�several�Member�States.�Thus,�first,�the�term�‘visa’�refers�to�an�act�formally�adopted�by�a�national�authority, not to mere tolerance, and, secondly, a visa is not to be confused with admission to the territory of a Member State, since a visa is required precisely for the purposes of enabling such admission. Consequently, admission to the territory of a Member State, which may merely be tolerated by the authorities of that Member State, does not constitute a ‘visa’. The Court added that the fact that such admission occurs in a situation characterised by the arrival of an unusually large number of third country nationals seeking international protection does not alter that conclusion.

Next, in the judgment in both Jafari and A.S., the Court ruled on the concept of ‘irregular crossing’ used (but not defined)�in�Article�13(1)�of�the�Dublin�III�Regulation.�It�stated�that�that�provision�must�be�interpreted�as�meaning�that�a�third�country�national�admitted�into�the�territory�of�one�Member�State,�without�fulfilling�the�entry�conditions�generally imposed in that Member State, for the purpose of transit to another Member State in order to lodge an application for international protection there, must be regarded as having ‘irregularly crossed’ the border of that�first�Member�State.�According�to�the�Court,�the�fact�that�the�crossing�was�tolerated�or�authorised�in�breach�of the applicable rules, or was authorised on humanitarian grounds by way of derogation from the entry conditions generally imposed on third country nationals, does not render that crossing regular. A Member State that has decided to authorise, on humanitarian grounds, the entry into its territory of a third country national who does not have a visa and is not entitled to a visa exemption cannot be absolved of its responsibility towards that person without calling into question the overall scheme of the Dublin III Regulation. Furthermore, as indicated previously, the fact that the border crossing occurred in a situation characterised by the arrival of an unusually large number of third country nationals is irrelevant. On that last point, the Court made clear in particular that the EU legislature has taken account of the risk that such a situation may occur and has therefore provided the Member States with means intended to be capable of responding to that situation appropriately, without, however, providing for the application,�in�that�case,�of�a�specific�body�of�rules�for�determining�the�Member�State�responsible.�That�is�the�case, for example, with regard to the Member States’ power under Article 17(1) of the Dublin III Regulation to decide to examine applications for international protection even if such examination is not their responsibility under the criteria laid down in that regulation (discretionary clause). As it did in its judgment in C. K. and Others



(C-578/16 PPU), 50 the Court nonetheless recalled that an applicant for international protection must not be transferred�if�that�transfer�entails�a�genuine�risk�that�the�person�concerned�may�suffer�inhuman�or�degrading�treatment contrary to Article 4 of the Charter. Against that background, the Court acknowledged the possibility that, following the arrival of an unusually large number of third country nationals seeking international protection, such a risk may exist in the Member State responsible, with the result that an applicant cannot be transferred to that Member State.

The Court applied the principles established in Jafari in its judgment in A.S.. Thus, it ruled that in order to challenge a transfer decision, an applicant for international protection is entitled, in the context of the remedies provided for in Article 27(1) of the Dublin III Regulation, to plead misapplication of the criterion for determining responsibility relating to the irregular crossing of the border of a Member State, laid down in Article 13(1) of that regulation. Relying on its judgment in Ghezelbash, 51 in which it held that such an applicant may, in accordance with his right to�an�effective�remedy,�plead�misapplication�of�the�criterion�relating�to�the�grant�of�a�visa,�the�Court�pointed�out�that the reasons given in that judgment also applied to the criterion set out in Article 13(1) of the Dublin III Regulation.

Lastly, continuing with the judgment in A.S.,�the�Court�examined�the�effects�of�lodging�an�appeal�against�a�transfer�decision on the running of the time limits laid down in Article 13(1) and Article 29(2) of the Dublin III Regulation. The Court pointed out that both provisions are intended to limit in time the responsibility of a Member State under the Dublin III Regulation. Under Article 13(1), the responsibility of a Member State based on the criterion of irregular crossing of the border is to cease 12 months after the date of that crossing and, under Article 29, the transfer of an applicant for international protection must take place within 6 months of acceptance by the Member State�responsible�or�of�the�final�decision�on�an�appeal�or�review�having�suspensive�effect�in�accordance�with�Article 27(3) of the Dublin III Regulation.

First,�the�Court�held�that�the�lodging�of�an�appeal�against�a�transfer�decision�has�no�effect�on�the�running�of�the�time limit laid down in Article 13(1), which constitutes a condition for the application of the criterion laid down in that provision. Secondly, the Court ruled that the time limit laid down in Article 29(1) and (2) does not start to run until�the�final�decision�on�that�appeal,�including�when�the�court�hearing�the�appeal�has�decided�to�request�a�preliminary�ruling�from�the�Court,�as�long�as�that�appeal�has�suspensive�effect.�That�latter�time�limit�relates�to�the enforcement of the transfer decision and may be applied only once the principle of transfer has been established, that is to say, at the earliest when the requested Member State has accepted the request to take charge or take back.

With further reference to the migration crisis, on 6 September 2017, the Grand Chamber of the Court delivered its judgment in Slovakia and Hungary v Council (C-643/15 and C-647/15, EU:C:2017:631), in which it dismissed in full the actions seeking annulment of Council Decision 2015/1601 establishing provisional measures for the mandatory relocation of asylum applicants. 52 The Council had adopted that decision on the basis of Article 78(3) TFEU in order to�help�Italy�and�Greece�deal�with�the�massive�inflow�of�migrants�in�the�summer�of�2015.�It�provided�for�the�relocation from those two Member States to other Member States, over a period of two years, of almost 120 000 persons in clear need of international protection. Slovakia and Hungary, which had voted against the adoption of that decision in the Council, asked the Court to annul the decision. In support of their actions, they argued,�first,�that�the�adoption�of�the�contested�decision�was�vitiated�by�errors�of�a�procedural�nature�or�was�

50/ �That judgment is presented in this report under Section VIII.1.2 ‘Handling of applications for international protection’.

51/ �Judgment of the Court of 7 June 2016, Ghezelbash (C-63/15, EU:C:2016:409).

52/ �Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit�of�Italy�and�Greece�(OJ�2015�L�248,�p.�80).





founded on an inappropriate legal basis and, secondly, that the decision was neither a suitable response to the migration crisis nor necessary for that purpose.

The�Court�first�of�all�held�that�whilst�Article�78(3)�TFEU�provides�that�the�Council�is�to�adopt�the�provisional�measures referred to therein on a proposal from the Commission and after consulting the Parliament, it does not contain any express reference to the legislative procedure. Accordingly, Decision 2015/1601 could be properly adopted in a non-legislative procedure and is consequently a non-legislative act. It follows that, contrary to the submissions of the applicant Member States, the adoption of the contested decision was not subject to the requirements relating to the participation of national Parliaments and to the public nature of the deliberations and vote in the Council, as those requirements apply only to legislative acts. In addition, the Court found that the Council was not required to act unanimously when it adopted the contested decision, even though, for the purpose of adopting some amendments, it had to depart from the Commission’s initial proposal. The amended proposal was approved on behalf of the Commission by two of its Members, who were authorised by the College for that purpose, which is consistent with the objective of Article 293(2) TFEU of protecting the Commission’s power of initiative.

The Court also ruled that although it is true that the provisional measures adopted on the basis of Article 78(3) TFEU may in principle derogate from provisions of legislative acts, both the material and temporal scope of such derogations�must�nonetheless�be�circumscribed,�so�that�the�latter�are�limited�to�responding�swiftly�and�effectively,�by�means�of�a�temporary�arrangement,�to�a�specific�crisis:�that�precludes�such�measures�from�having�either�the�object�or�effect�of�replacing�legislative�acts�or�amending�them�permanently�and�generally,�thereby�circumventing�the ordinary legislative procedure provided for in Article 78(2) TFEU. It nonetheless pointed out that the derogations provided�for�in�the�contested�decision�meet�that�requirement�since,�first,�they�apply�for�a�two-year�period�only�(subject to the possibility of extension) and, secondly, they concern a limited number of applicants for international protection in Greece and Italy who have one of the nationalities referred to in that decision and who have arrived or will arrive in those Member States over a given period.

With regard to observance of the principle of proportionality, the Court recalled that the EU institutions must be allowed broad discretion when they adopt measures in areas which entail choices on their part, including of a political nature, and in which they are called upon to undertake complex assessments. Consequently, the legality of�such�measures�adopted�in�one�of�those�areas�can�be�affected�only�if�the�measure�is�manifestly�inappropriate�having regard to the objective which the institutions are seeking to pursue. In the case in point, the Court considered that the relocation mechanism provided for in the contested decision is not a measure that is manifestly inappropriate�for�working�towards�its�objective,�namely�to�take�pressure�off�the�Greek�and�Italian�asylum�systems�which�were�severely�disrupted�by�the�massive�inflows�of�refugees�in�2015.�The�Council�was�therefore�fully�entitled�to take the view, in the exercise of the broad discretion which it must be allowed in this regard, that the distribution of the persons to be relocated had to be mandatory, given the particular urgency of the situation in which the contested decision was to be adopted. In any event, the lawfulness of the decision cannot be called in question on�the�basis�of�retrospective�assessments�of�its�efficacy,�such�as�the�small�number�of�relocations�carried�out�pursuant to the decision, since that can be explained by a series of factors that the Council could not foresee at the time when the decision was adopted, including, in particular, the lack of cooperation on the part of certain Member States.

Furthermore, the Court pointed out that the Council, when adopting the contested decision, was required to give effect�to�the�principle�of�solidarity�and�fair�sharing�of�responsibility,�including�its�financial�implications,�between�the Member States, which applies, under Article 80 TFEU, when the EU common policy on asylum is implemented. Therefore, the Council made no manifest error of assessment when it considered, in view of the particular urgency of the situation, that it had to take — on the basis of Article 78(3) TFEU, read in the light of Article 80 TFEU —provisional measures imposing a binding relocation mechanism.



Lastly, the Court made clear that if, in line with the arguments put forward by one of the intervening Member States, relocation in this case were to be strictly conditional upon the existence of cultural or linguistic ties between each applicant for international protection and the Member State of relocation, the distribution of those applicants between all the Member States in accordance with the principle of solidarity laid down by Article 80 TFEU and, consequently, the adoption of a binding relocation mechanism would be impossible. In any case, considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to EU law and, in particular, to Article 21 of the Charter. The system established by the Dublin III Regulation is based on objective criteria rather than on a preference expressed by the applicant for international protection.

2. IMMIGRATION POLICY

In the judgment in Fahimian (C-544/15, EU:C:2017:255), delivered on 4 April 2017, the Grand Chamber of the Court was called upon to interpret the concept of ‘threat to public security’ within the meaning of Article 6(1)(d) of Directive 2004/114 on the conditions of admission of third country nationals for the purposes of studies 53 and to clarify the scope of the discretion accorded to the Member States for that purpose. Under that provision, the Member States are to verify whether there are grounds relating to the existence of a threat to public policy, public security or public health which may justify a refusal to admit a third country national. The applicant in the main proceedings, an�Iranian�national,�held�a�Master�of�Science�degree�in�the�field�of�information�technology�awarded�by�a�university�which is the subject of EU restrictive measures because of its support of the Iranian Government, in particular in�the�military�field.�The�person�concerned�had�secured�a�grant�from�a�German�university�in�order�to�pursue�doctoral�studies�there�in�the�field�of�the�security�of�mobile�systems,�but�she�was�refused�a�study�visa.�She�challenged�that�refusal�before�the�German�referring�court.�The�German�Government�justified�the�refusal�by�the�fear that the knowledge the person concerned might acquire during her research could subsequently be misused in�Iran�(for�purposes�such�as�the�collection�of�confidential�information�in�western�countries,�internal�repression�or, more generally, in connection with human rights violations).

Having been asked about the interpretation of Directive 2004/114, the Court held that the competent national authorities, where a third country national has applied to them for a visa for study purposes, have a wide discretion in ascertaining, in the light of all the relevant elements of the situation of that national, whether he represents a threat, if only potential, to public security. That assessment may thus take into account not only the personal conduct of the applicant but also other elements relating, in particular, to his professional career.

The Court also ruled that Article 6(1)(d) of Directive 2004/114 does not preclude the competent national authorities from refusing to admit to the territory of the Member State concerned a third country national who holds a degree from a university which is the subject of EU restrictive measures because of its large scale involvement with the Iranian�Government�in�military�or�related�fields,�and�who�plans�to�carry�out�research�in�that�Member�State�in�a�field�that�is�sensitive�for�public�security,�if�the�elements�available�to�those�authorities�give�reason�to�fear�that�the�knowledge acquired by that person during his research may subsequently be used for purposes contrary to public security. As regards judicial review of the discretion enjoyed by national authorities in that respect, the Court found that although such review is limited, as regards the substance, to the absence of manifest error, it must also relate to compliance with procedural guarantees. Thus, it is for the national court to ascertain whether the�decision�to�refuse�admission�is�based�on�sufficient�grounds�and�a�sufficiently�solid�factual�basis.

53/ �Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L 375, p. 12).




IX. JUDICIAL COOPERATION IN CIVIL MATTERS

1. REGULATIONS No 44/2001 AND No 1215/2012 ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS.

In its judgment in Nogueira and Others (C-168/16 and C-169/16, EU:C:2017:688), delivered on 14 September 2017, the Court was required to interpret the concept of ‘place in which the employee habitually carries out his work’ within the meaning of Article 19(2)(a) of Regulation No 44/2001, 54 in order to determine the courts before which airline crew may bring legal action. The six applicants in the main proceedings were members of the cabin crew hired by or placed at the disposal of Ryanair, a company established in Ireland. All the employment contracts were drafted in English, were governed by Irish law and included a jurisdiction clause providing that the Irish courts had jurisdiction. In those contracts, it was stipulated that the work of the employees concerned was regarded as being carried out in Ireland given that their duties were performed on board aircraft registered in that Member State. Those contracts nevertheless designated Charleroi airport (Belgium) as the employees’ ‘home base’. Those employees started and ended their working day at that airport and were contractually obliged to reside within an hour of their ‘home base’. With a view to ascertaining whether it had jurisdiction to hear the cases in the main proceedings, the Belgian court before which the applicants had brought proceedings asked the Court about the interpretation in those circumstances of the concept of ‘place in which the employee habitually carries out his work’�within�the�meaning�of�Regulation�No�44/2001.�Specifically,�it�enquired�whether�that�concept�could�be�equated with the concept of ‘home base’ within the meaning of Regulation No 3922/91 55�in�the�field�of�civil�aviation.�Regulation�No�3922/91�defines�that�concept�as�the�place�from�which�the�air�crew�systematically�starts�its working day and ends it by organising its daily work there and close to which employees have, during the period of performance of their contract of employment, established their residence and are at the disposal of the air carrier.

First of all, the Court recalled that, as regards disputes related to employment contracts, the EU rules concerning jurisdiction are aimed at protecting the weaker party to the contract, by allowing an employee to sue his employer before the courts which he regards as closest to his interests. Next, the Court pointed out that where a national court is not able to determine with certainty the ‘place where the employee habitually carries out his work’, it must, in order to assess whether it has jurisdiction, identify ‘the place from which’ that employee principally discharges�his�obligations�towards�his�employer.�In�order�to�determine�specifically�that�place,�the�national�court�must refer to a set of indicia (circumstantial method), including the place where the aircraft aboard which the work is habitually performed are stationed. Consequently, the concept of ‘place where, or from which, the employee habitually performs his work’ cannot be equated with any concept referred to in an act of EU law that is not Regulation No 44/2001. In particular, as regards the air crew employed by or assigned to an airline, that concept cannot be equated with the concept of ‘home base’ within the meaning of Regulation No 3922/91. Indeed,

54/ �Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

55/ �Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in�the�field�of�civil�aviation�(OJ�1991�L�373,�p.�4),�as�amended�by�Regulation�(EC)�No�1899/2006�of�the�European�Parliament�and�of�the�Council�of 12 December 2006 (OJ 2006 L 377, p. 1).




Regulation No 44/2001 does not refer to Regulation No 3922/91, nor does it have the same objectives; the latter regulation�aims�to�harmonise�technical�requirements�and�administrative�procedures�in�the�field�of�civil�aviation�safety.

That�said,�the�Court�made�clear�that�the�concept�of�‘home�base’�constitutes�nevertheless�a�significant�indicium�for the purposes of determining the ‘place where the employee habitually carries out his work’. According to the Court, it would only be if, taking account of the facts of each individual case, applications were to display closer connections with a place other than the ‘home base’ that the relevance of that base in identifying the ‘place from which employees habitually carry out their work’ would be undermined.

In another case concerning the determination of the court with jurisdiction, the Court, sitting as the Grand Chamber, ruled in the judgment of 17 October 2017 in Bolagsupplysningen and Ilsjan (C-194/16, EU:C:2017:766) on the application of Article 7(2) of Regulation No 1215/2012. 56 That regulation lays down a rule of special jurisdiction in matters relating to tort, delict or quasi-delict, under which a defendant may be sued in the courts of the Member State where the harmful event occurred or may occur. In its judgment, the Court provided clarification�on�the identification of the place where the damage occurred in the case of an alleged infringement of the personality rights of a legal person committed on the internet. In this case, the applicant, a company governed by Estonian law, had brought an action against a company governed by Swedish law before the Estonian courts. That�action�related�to�applications�for�the�rectification�of�allegedly�incorrect�information�published�on�the�website�of the latter concerning the applicant, the deletion of associated comments on a discussion forum on that website and�compensation�for�harm�allegedly�suffered.�The�question�that�arose�was�whether�the�Estonian�courts�had�jurisdiction on the ground that they were the courts for the place where the alleged damage occurred — Estonia — even though the information and comments at issue had been published in Swedish, without a translation, on a Swedish website.

A request for a preliminary ruling having been submitted to it in that regard, the Court recalled the principle established in eDate Advertising and Others, 57 concerning a natural person, according to which, in the event of an alleged infringement of personality rights by means of content placed online on a website, the person who considers that his rights have been infringed must have the option of bringing an action for damages, in respect of all the harm caused, before the courts of the Member State in which the centre of his interests is based. In applying that judgment, the Court held that the matter of whether the person is a natural or legal person is not conclusive.�As�regards�a�legal�person,�as�in�the�main�proceedings,�the�centre�of�interests�at�issue�must�reflect�the�place�where�its�commercial�reputation�is�most�firmly�established�and�must,�therefore,�be�determined�by�reference to the place where it carries on the main part of its activities. The Court added that where a legal person carries�on�the�main�part�of�its�activities�in�a�different�Member�State�from�the�one�in�which�its�registered�office�is�located, that person may sue the alleged perpetrator of the injury in that other Member State by virtue of it being where the damage occurred.

Lastly, the Court recalled — again with reference to eDate Advertising and Others — that a person who considers that his rights have been infringed may also, instead of an action for damages in respect of all the harm caused, bring his action before the courts of each Member State in whose territory content placed online is or has been accessible, which have jurisdiction only in respect of the harm caused in the territory of the Member State of the court�seised.�However,�that�principle�does�not�apply�in�the�case�of�an�application�for�the�rectification�of�information�and the removal of content placed online on a website. In the light of the ubiquitous nature of that content and

56/ �Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

57/ �Judgment of the Court of 25 October 2011, eDate Advertising and Others (C-509/09 and C-161/10, EU:C:2011:685).





information and the fact that the scope of their distribution is, in principle, universal, such an application can only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage.

2. REGULATION No 1259/2010 ON THE LAW APPLICABLE TO DIVORCE

In its judgment in Sahyouni (C-372/16, EU:C:2017:988) of 20 December 2017, the Court ruled on the substantive scope of Regulation No 1259/2010 (Rome III Regulation) 58 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. The case in the main proceedings concerned the dissolution, by a religious court in Syria, of a marriage entered into in Syria between two persons each with Syrian and German nationality who currently live in Germany. Recognition of that ‘private’ divorce, which had been established by means of a unilateral declaration by the husband, was subsequently granted in Germany on the ground that the divorce was governed by Syrian law under the Rome III Regulation. The wife challenged that decision before the national court, which referred a number of questions to the Court for a preliminary ruling on the interpretation of that regulation.

By order of 12 May 2016, 59 the Court however declared that it manifestly lacked jurisdiction to answer those questions on the ground, in particular, that the Rome III Regulation did not apply to the recognition of a divorce decision delivered in a third country, and that the referring court had not provided any evidence capable of establishing that the provisions of that regulation had been rendered directly and unconditionally applicable by national law to the case in the main proceedings. It was against that background that the national court submitted a second reference for a preliminary ruling to the Court on the interpretation of the Rome III Regulation, pointing out that, under German law, that regulation applies to the recognition in Germany of private divorces pronounced in a third country, such as the divorce at issue in the main proceedings.

In�the�light�of�that�clarification,�the�Court�first�of�all�found�that�the�second�reference�for�a�preliminary�ruling�was�admissible. Secondly, it examined whether a ‘private’ divorce such as that at issue in the main proceedings falls within the substantive scope of the Rome III Regulation. It considered that although it is true that that regulation does�not�define�the�concept�of�‘divorce’�and�that�private�divorces�are�not�explicitly�excluded�from�its�scope,�the�fact remains that there are several factors which show that the regulation covers exclusively divorces pronounced either by a national court or by, or under the supervision of, a public authority. Thus, in the Court’s opinion, it was not the intention of the EU legislature that that regulation should be applicable to other types of divorce, such as that in issue in the main proceedings, which is based on a ‘unilateral declaration of intent’ pronounced before a religious court. The Court took the view that such an interpretation in addition ensures consistency with the scope of Regulation No 2201/2003, 60 which was also adopted in the context of the policy of judicial cooperation in civil matters and applies only to divorces pronounced by a court, pursuant to Articles 1(1) and 2(4) thereof. Accordingly, having regard not only to the wording of the Rome III Regulation, but also its context and the objectives it pursues, the Court ruled that a divorce resulting from a unilateral declaration made by one of the spouses before a religious court does not fall within the scope of that regulation.

58/ �Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10). This regulation repeals Regulation No 44/2001.

59/ �Order of the Court of 12 May 2016, Sahyouni (C-281/15, EU:C:2016:343).

60/ �Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).





3. REGULATION No 650/2012 ON SUCCESSION

In the judgment in Kubicka (C-218/16, EU:C:2017:755), delivered on 12 October 2017, the Court had the opportunity to rule on the lawfulness of a refusal to draw up a will in accordance with the law of the testator’s nationality — which was also the law chosen by the testator — on account of a legacy appearing therein relating to property located in another Member State which does not recognise that legacy. Accordingly, the Court was required to interpret, for the first�time,�Regulation�No�650/2012�61 on jurisdiction, applicable law, recognition and enforcement of decisions and�acceptance�and�enforcement�of�authentic�instruments�in�matters�of�succession,�and�provided�clarification�on its scope. In the main proceedings, a Polish testator residing in Germany, who had chosen, pursuant to Article 22(1) of Regulation No 650/2012, Polish succession law as the law governing her will, wanted to establish in�her�will�a�legacy�‘by�vindication’,�which�produces�direct�material�effects�on�the�date�of�opening�of�the�succession,�in�respect�of�immovable�property�in�Germany,�a�Member�State�in�which�the�material�effects�of�that�type�of�legacy�are not recognised. Since foreign legacies ‘by vindication’ are, by means of adaptation, considered to be legacies ‘by�damnation’�in�Germany,�the�officiating�notary�in�Poland�had�refused�to�draw�up�a�will�contrary�to�German�legislation and case-law relating to rights in rem and land registration, which the notary considered himself bound to take into account under Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012. Since the person concerned�wished�to�rule�out�recourse�to�a�legacy�‘by�damnation’,�which�would�entail�difficulties�in�relation�to�the�representation of her minor children, she brought an action against the decision refusing to draw up a will containing a legacy ‘by vindication’.

The�Court�first�of�all�recalled�that�Regulation�No�650/2012�applies�to�succession�to�the�estate�of�a�deceased�person, which covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession. Next, it pointed out that Article 1(2) of that regulation lists various matters that are excluded from its scope, including, under point (k), ‘the nature of rights in rem’ and, under point (l), ‘any recording in a register of rights in immovable�or�movable�property,�including�the�legal�requirements�for�such�recording,�and�the�effects�of�recording�or failing to record such rights in a register’. In the case in point, the Court concluded that direct transfer of a right of ownership by means of a legacy ‘by vindication’ concerns only the arrangement by which the right of ownership of an asset is transferred at the time of the testator’s death, which is precisely what Regulation No 650/2012 seeks to allow. Accordingly, such methods of transfer are not covered by Article 1(2)(k) of Regulation No 650/2012. In the view of the Court, those exclusions do not justify the refusal, by an authority of a Member State,�to�recognise�the�material�effects�of�a�legacy�‘by�vindication’,�provided�for�by�the�law�governing�succession,�on the ground that the legacy concerns the right of ownership of immovable property located in that Member State,�whose�law�does�not�provide�for�legacies�with�direct�material�effect�when�succession�takes�place.�

Based on the principle that the law governing succession should govern the succession as a whole, the Court considered that since Article 1(2)(l) of Regulation No 650/2012 concerns only the recording in a register of rights in�immovable�or�movable�property,�including�the�legal�requirements�for�such�recording,�and�the�effects�of�recording�or failing to record such rights in a register, the conditions under which such rights are acquired do not constitute one of the subjects excluded from the scope of the regulation under this provision. In that connection, it drew attention to the objective pursued by Regulation No 650/2012, which is to eliminate obstacles to the free movement of persons who want to assert their rights arising from a cross-border succession.

61/ �Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European�Certificate�of�Succession�(OJ�2012�L�201,�p.�107).




The Court also held that Article 31 of Regulation No 650/2012, which provides for the adaptation of rights in rem, did not apply in the instant case. That provision does not concern the method of the transfer of rights in rem, including, inter alia, legacies ‘by vindication’ or ‘by damnation’, but only the respect of the content of rights in rem, determined by the law governing the succession, and their reception in the legal order of the Member State in which they are invoked. Therefore, in so far as the right in rem transferred by the legacy ‘by vindication’ is the right of ownership, which is recognised in German law, there is no need for the adaptation provided for in Article 31 of Regulation No 650/2012.

X. JUDICIAL COOPERATION IN CRIMINAL MATTERS

In�the�field�of�judicial�cooperation�in�criminal�matters,�reference�must�be�made�to�two�judgments�interpreting�the provisions of Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States. 62

In its judgment in Popławski (C-579/15, EU:C:2017:503), delivered on 29 June 2017, the Court ruled on the compatibility with Framework Decision 2002/584 of national legislation implementing Article 4(6) of that framework decision, which provides that the residence of the requested person in the executing Member State is an optional ground for non-execution of a European arrest warrant. The main proceedings concerned the execution, in the Netherlands, of a European arrest warrant issued by a Polish court against a Polish national residing in the Netherlands for the purpose of enforcing a custodial sentence in Poland.

The Court ruled that Article 4(6) of Framework Decision 2002/584 precludes national legislation implementing that provision which prescribes that judicial authorities are, in any event, obliged to refuse to execute a European arrest warrant if the requested person resides in that Member State, without those authorities having any margin of discretion and without that Member State actually undertaking to execute the custodial sentence pronounced against the requested person, within the meaning of the framework decision. In the Court’s view, such a situation creates a risk of impunity of that person.

The�Court�first�of�all�recalled�that�Framework�Decision�2002/584�lays�down�the�principle�that�the�Member�States�must execute any European arrest warrant on the basis of the principle of mutual recognition and that a refusal to execute is intended to be an exception which must be interpreted strictly. Next, it pointed out that it is apparent from Article 4(6) of Framework Decision 2002/584 that any refusal to execute a European arrest warrant presupposes an actual undertaking on the part of the executing Member State to execute the custodial sentence imposed on the requested person, even though the mere fact that that Member State declares itself ‘willing’ to execute the sentence cannot, in any event, be regarded as justifying such a refusal.

Furthermore,�the�Court�noted�that�the�provisions�of�Framework�Decision�2002/584�do�not�have�direct�effect.�However, the competent national court, by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, is obliged to interpret the provisions of national law, so far as is possible, in the light of the wording and the purpose of that framework decision. Consequently, in the event of a refusal�to�execute�a�European�arrest�warrant�issued�with�a�view�to�the�surrender�of�a�person�who�has�been�finally�judged in the issuing Member State and given a custodial sentence, the judicial authorities of the executing

62/ �Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1).




Member State are themselves required to ensure that the sentence pronounced against that person is actually executed, and not merely to inform the issuing Member State that they are willing to execute that sentence. Similarly, Article 4(6) of Framework Decision 2002/584 does not permit the authorities of the executing Member State to refuse to surrender a person on the sole ground that that Member State intends to prosecute the person in relation to the same acts.

In the judgment in Tupikas (C-270/17 PPU, EU:C:2017:628), delivered on 10 August 2017 under the urgent preliminary ruling procedure, the Court ruled on the interpretation of Article 4a(1) of Framework Decision 2002/584, as amended by Framework Decision 2009/299, 63 providing for an optional ground for non-execution of a European arrest warrant where the person concerned did not appear in person at the trial resulting in his conviction. The main proceedings concerned the execution, in the Netherlands, of a European arrest warrant issued by a Lithuanian court against a Lithuanian national for the purpose of enforcing a custodial sentence in Lithuania. Although it was common ground�that�the�party�concerned�had�appeared�in�person�at�the�trial�at�first�instance,�the�European�arrest�warrant�did not contain any information concerning his appearance at the appeal. Against that background, the Netherlands court sought to ascertain whether the optional ground for non-execution of a European arrest warrant, relating to the person concerned’s non-appearance in person at the trial resulting in the decision, referred to the trial at first�instance�or�the�appeal.

The�Court�first�of�all�noted�that�the�concept�of�‘trial�resulting�in�the�decision’�must�be�regarded�as�an�autonomous�concept�of�EU�law�and�interpreted�uniformly�throughout�the�European�Union,�irrespective�of�classifications�in�the Member States. The Court ruled that that concept must be understood as referring to the proceeding that led�to�the�judicial�decision�which�finally�sentenced�the�person�whose�surrender�is�sought�in�connection�with�the�execution of a European arrest warrant. If proceedings have taken place at several instances giving rise to successive decisions, at least one of which was given in absentia, it is appropriate to understand by ‘trial resulting in the decision’, within the meaning of Article 4a(1) of Framework Decision 2002/584, the instance which led to the�last�of�those�decisions,�provided�that�the�court�at�issue�made�a�final�ruling�on�the�guilt�of�the�person�concerned�and imposed a penalty on him, such as a custodial sentence, following a re-examination, in fact and in law, of the merits of the case. Consequently, an appeal proceeding in principle falls within the scope of that concept. Lastly, the�Court�confirmed�that�that�interpretation�was�fully�in�line�with�the�requirements�of�respect�for�the�rights�of�the defence which Article 4a of Framework Decision 2002/584 seeks to uphold.

63/ �Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ 2009 L 81, p. 24).




XI. COMPETITION

1. ARTICLE 101 TFEU

In the area of agreements, decisions and concerted practices concerning the liability of a parent company and a selective distribution system, two judgments deserve mention. Reference should also be made to the judgment in APVE and Others (C-671/15) relating to the conditions for the application of the rules on competition in the field�of�the�common�agricultural�policy.�64

1.1. Liability of a parent company

On 27 April 2017, in its judgment in Akzo Nobel and Others v Commission (C-516/15 P, EU:C:2017:314), the Court confirmed�the�judgment�under�appeal�65 and found that the fact that the Commission’s power to impose penalties on two subsidiaries is time-barred does not preclude the parent company, in respect of which the limitation period has not expired, from being held liable.

The�Court�pointed�out,�first�of�all,�that�the�authors�of�the�Treaties�chose�to�use�the�concept�of�an�undertaking�to�designate the perpetrator of an infringement of competition law liable to be punished pursuant to Article 101 or 102 TFEU and that, according to the case-law, that concept must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. The Court also recalled that neither Article 23(2)(a) of Regulation No 1/2003 nor the case-law lays down which legal or natural person the Commission is�obliged�to�hold�responsible�for�the�infringement�or�to�punish�by�the�imposition�of�a�fine.�Since�the�unlawful�conduct of a subsidiary may, according to a rebuttable presumption, be attributed to the parent company in particular where, although having a separate legal personality, that subsidiary does not determine independently its own conduct on the market, the parent company and its subsidiary form, in those circumstances, a single economic unit and therefore form a single undertaking for the purposes of EU competition law.

The Court also pointed out that the parent company to which the unlawful conduct of its subsidiary is attributed is, in accordance with settled case-law, held individually liable for an infringement of the EU competition rules which�it�is�itself�deemed�to�have�infringed,�because�of�the�decisive�influence�which�it�exercised�over�the�subsidiary.�For that reason, the joint and several liability as between two companies constituting an economic unit cannot, in�the�Court’s�view,�be�reduced,�as�regards�the�payment�of�the�fine,�to�a�type�of�security�provided�by�the�parent�company�in�order�to�guarantee�payment�of�the�fine�imposed�on�the�subsidiary.�Lastly,�since�the�parent�company’s�liability is wholly derivative, it necessarily depends on the facts constituting the infringement committed by its subsidiary and to which its liability is inextricably linked.

Nonetheless, the Court held that the fact that the Commission’s power to impose penalties is time-barred vis-à-vis the subsidiary does not necessarily mean that the limitation period has expired in respect of the parent company, even though the parent company’s liability for the time frame at issue may be entirely based on the

64/ �That judgment is presented in Section VI ‘Agriculture’.

65/ �Judgment of the General Court of 15 July 2015, Akzo Nobel and Others v Commission (T-47/10, EU:T:2015:506).





unlawful conduct of that subsidiary. The Court therefore ruled that the fact that penalties can no longer be imposed on certain subsidiaries because the limitation period has expired, under Article 25(1)(b) of Regulation No 1/2003, 66 does not preclude the parent company, which is considered personally responsible and jointly and severally liable for the same anticompetitive behaviour subsequent to that time frame, and in respect of which the limitation period has not expired, from having proceedings instituted against it. In this case, since the participation of two subsidiaries of Akzo Nobel in the cartels at issue ended in 1993, whereas Akzo Nobel had been involved in those infringements until 2000, the Court ruled that the General Court had been right to consider that the fact that the power to impose penalties on the two subsidiaries was time-barred did not preclude the parent company from being held liable.

1.2. Vertical agreements

As regards restrictions contained in vertical agreements, the Court, in its judgment in Coty Germany (C-230/16, EU:C:2017:941), delivered on 6 December 2017, provided considerable guidance on the compatibility of selective distribution systems for luxury goods with Article 101 TFEU. The dispute concerned a restriction contained in a selective distribution contract concluded between Coty Germany, a supplier of luxury cosmetics, and an authorised distributor of those goods, which prohibited such distributors from using, in a discernible manner, third-party undertakings for internet sales of the goods.

The�referring�court�enquired,�first,�whether�the�contested�restriction,�which�was�designed�primarily�to�preserve�the luxury image of those goods, was compatible with Article 101(1) TFEU.

The�Court�first�of�all�drew�attention�to�its�decision�in�Copad, 67�according�to�which,�first,�luxury�goods�may�require�the implementation of a selective distribution system in order to preserve their quality and to ensure that they are used properly, and, secondly, such a system is compatible with Article 101(1) TFEU to the extent that resellers are chosen on the basis of objective criteria of a qualitative nature that are laid down uniformly for all potential resellers and applied in a non-discriminatory fashion and that the criteria laid down do not go beyond what is necessary.

By its second question, the referring court asked whether Article 101(1) TFEU had to be interpreted as precluding a contractual clause, such as that at issue in the main proceedings, which prohibits authorised distributors from using, in a discernible manner, third-party platforms for the online sale of luxury goods. The Court found that such a contractual clause could be compatible with Article 101(1) TFEU provided that it seeks in particular to preserve the luxury image of those goods, that it is laid down uniformly and not applied in a discriminatory fashion, and, lastly, that it is proportionate in the light of the objective pursued, these being matters to be determined by the referring court. Next, the Court held that the contested restriction was appropriate in the light of the objective pursued since it required the goods in issue to be exclusively associated with the authorised distributors, enabling Coty to monitor the sales environment of those goods and thus preserve their luxury image among consumers. In respect of the proportionality of the restriction, the Court made clear that the restriction was not absolute, as in Pierre Fabre Dermo-Cosmétique, 68 in so far as the authorised distributors in the case in point were permitted

66/ �Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

67/ �Judgment of the Court of 23 April 2009, Copad (C-59/08, EU:C:2009:260).

68/ �Judgment of the Court of 13 October 2011, Pierre Fabre Dermo-Cosmétique (C-439/09, EU:C:2011:649).






to sell the contract goods online both via their own websites and via third-party platforms where the use of such platforms is not discernible to the consumer. Therefore, the Court considered that the restriction appeared to be lawful in the light of Article 101(1) TFEU.

Lastly, in the context of its answers to the national court’s third and fourth questions, the Court was called upon to assess whether the aforementioned prohibition amounted to a restriction of customers, within the meaning of Article 4(b) of Regulation No 330/2010, 69 or a restriction of passive sales to end users, within the meaning of Article 4(c) of that regulation. The Court found that it did not. In accordance with Article 101(3) TFEU, Regulation No 330/2010 establishes exemptions for certain types of restrictions on competition, provided that the market share held by both supplier and buyer does not exceed 30% of the relevant market. Article 4 of Regulation No 330/2010 also makes provision for hardcore restrictions which do not qualify for those exemptions. In that regard, the Court concluded that since the contested clause did not completely prevent Coty’s distributors from using�the�internet�as�a�means�of�marketing�the�goods,�just�from�using�a�specific�kind�of�internet�sale,�namely�the�discernible�use�of�third-party�undertakings,�the�clause�could�not�be�classified�as�a�restriction�of�customers�or�of�passive sales to end users within the meaning of Article 4 of Regulation No 330/2010.

2. ARTICLE 102 TFEU

On 6 September 2017, the judgment delivered in Intel v Commission (C-413/14 P, EU:C:2017:632)�afforded�the�Court the opportunity, sitting as the Grand Chamber, to determine the Commission’s territorial jurisdiction to punish abuse of a dominant position.�The�dispute�at�issue�originated�in�the�decision�of�the�Commission�to�impose�a�fine�of EUR 1.06 billion on Intel, a US manufacturer of central processing units (‘CPUs’), for having abused its dominant position on the world market for x86 CPUs, in particular by granting loyalty rebates to original equipment manufacturers in return for being supplied exclusively by Intel. 70 The Court set aside the judgment of the General Court dismissing Intel’s action for annulment of that decision. 71 It considered that the General Court had failed, in the judgment under appeal, to examine all of the arguments put forward by Intel as regards whether the rebates at issue, as applied by Intel to some of its customers, were capable of restricting competition.

Concerning,�in�the�first�place,�the�question�raised�by�Intel�as�to�whether�the�Commission�had�jurisdiction�to�find�and punish conduct adopted outside the European Union, the Court recalled that the fact that an undertaking participating in an agreement is situated in a third country does not prevent the application of Article 101 TFEU if that agreement is operative on the territory of the internal market. In this case, the Commission had, in the contested decision, based its jurisdiction to apply Article 102 TFEU to the agreements concluded by Intel with a major�original�equipment�manufacturer�(‘OEM’)�in�China�on�the�‘qualified�effects’�of�the�practices�at�issue�in�the�European�Economic�Area.�The�Court�confirmed�that�that�criterion�may�serve�as�a�basis�for�the�Commission’s�jurisdiction to apply EU competition law under public international law when it is foreseeable that the conduct in�question�will�have�an�immediate�and�substantial�effect�in�the�EU�market.�The�Court�held�that�it�is�sufficient�to�take�account�of�the�probable�effects�of�conduct�on�competition�in�order�for�the�foreseeability�criterion�to�be�satisfied,�which�was�the�case�here.�Despite�the�fact�that�the�CPUs�were�intended�for�delivery�in�China,�the�Court�

69/ �Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ 2010 L 102, p. 1).

70/ �Commission�Decision�C(2009)�3726�final�of�13�May�2009�relating�to�a�proceeding�under�Article�[102�TFEU]�and�Article�54�of�the�EEA�Agreement (Case COMP/C-3/37.990 Intel).

71/ �Judgment of the General Court of 12 June 2014, Intel v Commission (T-286/09, EU:T:2014:547).





found that Intel’s conduct formed part of an overall anticompetitive strategy aimed at foreclosing its only competitor’s access to the most important sales channels on the market and noted that the sale of computers equipped with those CPUs was in particular planned in the European Economic Area.

As�regards,�in�the�second�place,�the�plea�alleging�a�material�procedural�irregularity�affecting�Intel’s�rights�of�the�defence, Intel essentially criticised the General Court’s consideration of the plea by which it had complained, at first�instance,�about�the�Commission’s�failure�to�record�an�interview�with�an�executive�of�one�of�Intel’s�largest�customers during the administrative procedure. The Court found, in that respect, that the General Court had erred in law by drawing a distinction between formal interviews, which fall in particular under Article 19(1) of Regulation No 1/2003, and informal interviews, which do not fall within that provision. The Commission is required to record, in a form of its choosing, any interview which it conducts under that provision for the purpose of collecting information relating to the subject matter of an investigation. However, the Court pointed out that since the Commission had not relied in the contested decision on information collected during the interview at issue, it was for Intel to prove that, if it had been able to rely on a proper recording of that interview, it would have been able�to�influence�the�assessments�made�against�it�in�that�decision.�The�Court�ruled�that�no�such�proof�had�been�provided in this case.

As regards, in the third and last place, the assessment of abuse, the Court found that Intel’s disputed conduct vis-à-vis�its�trading�partners,�seeking�to�exclude�its�only�serious�competitor�from�the�market,�consisted,�first,�in�the grant of a rebate to four major OEMs on the condition that they would purchase all or almost all of their x86 CPUs from Intel and, secondly, in the making of payments to OEMs so that they would delay, cancel or restrict the marketing of certain products equipped with that competitor’s CPUs. In the judgment under appeal, the General Court had considered that the question whether an exclusivity rebate granted by an undertaking in a dominant position could be categorised as ‘abusive’ did not depend on an analysis of the circumstances of the case aimed at establishing the capability of that rebate to restrict competition, since such rebates are by their very nature capable of restricting competition. The Court however found that the Commission had carried out an in-depth examination in the contested decision of the circumstances of the case and had concluded, on that basis,�that�an�as�efficient�competitor�would�have�had�to�offer�prices,�on�account�of�those�rebates,�which�would�not�have�been�viable.�Thus,�according�to�the�Court,�the�as�efficient�competitor�test�had�played�an�important�role�in�the�Commission’s�assessment�of�whether�the�practice�at�issue�was�capable�of�having�foreclosure�effects�on�competitors. The Court therefore found that the General Court was required to examine all of Intel’s arguments concerning�the�application�of�the�as�efficient�competitor�test�seeking�to�demonstrate�alleged�errors�by�the�Commission in the context of that test. It thus set aside the judgment under appeal and referred the case back to the General Court so that it may examine, in the light of the arguments put forward by Intel, whether the rebates at issue are capable of restricting competition.



3. CONCENTRATIONS

In its judgment in Austria Asphalt (C-248/16, EU:C:2017:643), delivered on 7 September 2017, the Court ruled that Article 3 of Regulation No 139/2004 72 must be interpreted as meaning that a concentration is deemed to arise upon a change in the form of control of an existing undertaking which, previously exclusive, becomes joint, only if the joint venture created by such a transaction performs on a lasting basis all the functions of an autonomous economic entity.

The main proceedings concerned an asphalt plant which was wholly owned by a group of construction undertakings and�whose�activities�were�confined�to�supplying�the�parent�company.�As�such,�it�had�no�significant�presence�on�the market. The proposal at the origin of the dispute provided for the merger of two construction undertakings, one of which was the owner of the asphalt plant. Under the proposal, control of the asphalt plant was to be split between the two undertakings subject to the merger and its production output was primarily intended for those undertakings.

Having been asked about the conditions under which a concentration arises where there is a change in the form of control of an existing undertaking, for the purpose of Article 3(1)(b) and Article 3(4) of Regulation No 139/2004, the�Court�first�of�all�recalled�that�the�aim�of�that�regulation�is�to�ensure�that�the�process�of�reorganisation�of�undertakings does not result in lasting damage to competition. The concept of ‘concentration’ must therefore be�defined�in�such�a�manner�as�to�cover�operations�bringing�about�a�lasting�change�in�the�control�of�the�undertakings�concerned and, thus, in the structure of the market. In particular, Article 3(1)(b) of that regulation takes as the constituent element of the concept of concentration not the creation of an undertaking, but a change in the control of an undertaking. Accordingly, the Court stated that Article 3(4) of the regulation concerns joint ventures only�in�so�far�as�their�creation�provokes�a�lasting�effect�on�the�structure�of�the�market,�regardless�of�whether�that undertaking, now jointly controlled, existed before the transaction in question.

The Court pointed out that, under Article 21(1) of Regulation No 139/2004, that regulation alone is to apply to concentrations�as�defined�in�Article�3�of�the�regulation,�to�which�Regulation�No�1/2003�73 is not, in principle, applicable. By contrast, in the Court’s view, Regulation No 1/2003 continues to apply to the actions of undertakings which, without constituting a concentration within the meaning of Regulation No 139/2004, are nevertheless capable of leading to coordination between undertakings in breach of Article 101 TFEU and which, for that reason, are subject to the control of the Commission or of the national competition authorities. The Court ruled that an interpretation of Article 3 of Regulation No 139/2004, according to which a change in the control of an undertaking which, previously exclusive, becomes joint is covered by the concept of concentration even if that joint venture does not perform on a lasting basis all the functions of an autonomous economic entity, is not, therefore, consistent with Article 21(1) thereof.

72/ � Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).





4. PROCEDURE FOR THE APPLICATION OF THE COMPETITION RULES

On 14 March 2017, in the judgment of the Grand Chamber in Evonik Degussa v Commission (C-162/15 P, EU:C:2017:205),�the�Court�ruled�on�the�extent�of�the�protection�to�be�afforded�to�information�taken�from�a�statement made with a view to obtaining leniency, in the context of the publication of Commission decisions relating to the application of Article 101 TFEU. The dispute concerned a decision of the Commission 74 by which the�hearing�officer�for�competition�proceedings�had�rejected�a�request�for�confidential�treatment�of�information�that had been provided by the applicant in the course of its cooperation under the 2002 Leniency Notice. 75 That information�was�contained�in�an�extended�version�of�the�decision�finding�an�infringement�of�the�competition�rules which was to be published on the website of the Directorate-General for Competition. 76 In the contested decision,�the�hearing�officer�had�in�particular�concluded�that�he�had�no�power�to�adjudicate�on�the�applicant’s�argument�that�the�publication�of�such�information�would�constitute�an�unwarranted�difference�in�treatment�by�comparison with the other participants in the infringement, thereby contravening the principles of legitimate expectations and equal treatment. The Court set aside the judgment of the General Court, which had previously dismissed the action, 77�on�the�ground�that�the�latter�had�erred�in�law�in�finding�that�the�hearing�officer�had�been�right to decline competence.

The Court recalled that the aim of Article 8 of Decision 2011/695 78 is to provide, on a procedural level, for the protection of information required by EU law which has come to the Commission’s knowledge in the context of proceedings applying the competition rules. Although it is apparent from Article 8 of Decision 2011/695 that the hearing�officer�may�find�that�the�information�may�be�disclosed�when�it�does�not,�in�fact,�constitute�a�business�secret�or�other�confidential�information�or�when�there�is�an�overriding�interest�in�its�disclosure,�the�person�concerned is not, by contrast, limited in the grounds on which he may rely in order to object to the proposed publication. Thus, the protection provided for in Article 8 must be understood as relating to any ground, arising from�rules�or�principles�of�EU�law,�to�justify�protecting�the�confidentiality�of�the�contested�information.�The�Court�pointed out that the scope of Article 8(2) of Decision 2011/695 would be considerably reduced if that provision had�to�be�interpreted�as�allowing�the�hearing�officer�to�take�into�account�only�those�rules�intended�to�afford�specific�protection�against�disclosure�of�the�information�to�the�public,�such�as�the�rules�in�Regulation�No�45/2001�

74/ �Commission�Decision�C(2012)�3534�final�of�24�May�2012�rejecting�a�request�for�confidential�treatment�submitted�by�Evonik�Degussa (Case COMP/F/38.620 — Hydrogen peroxide and Perborate) (OJ 2015 C 198, p. 24).

75/ �Commission�notice�on�immunity�from�fines�and�reduction�of�fines�in�cartel�cases�(OJ�2002�C�45,�p.�3),�in�force�at�the�material�time.

76/ �Decision�C(2006)�1766�final�relating�to�a�proceeding�under�Article�81�[EC]�and�Article�53�of�the�EEA�Agreement�(Case�COMP/F/38.620�—�Hydrogen Peroxide and Perborate) (OJ 2006 L 353, p. 54).

77/ �Judgment of the General Court of 28 January 2015, Evonik Degussa v Commission (T-341/12, EU:T:2015:51).

78/ �Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing�officer�in�certain�competition�proceedings�(OJ�2011�L�275,�p.�29).





on the protection of individuals with regard to the processing of personal data by the institutions 79 or in Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents. 80

Next, as regards the substance of the case, the Court rejected the arguments submitted in support of the appeal. First�of�all,�it�recalled�that�information�which�was�secret�or�confidential�but�which�is�over�five�years�old�must,�as�a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential�nature.�Thus,�it�made�clear�that�those�considerations,�which�give�rise�to�a�rebuttable�presumption,�are�valid�both�in�the�context�of�requests�for�confidential�treatment�in�respect�of�parties�intervening�in�actions�before�the�EU�Courts�and�in�the�context,�such�as�this�case,�of�requests�for�confidentiality�with�a�view�to�the�publication�by�the�Commission�of�a�decision�finding�an�infringement�of�competition�law.

As regards the question raised by the applicant as to whether, despite the fact that Regulation No 1049/2001 does not apply in the instant case, the case-law formulated on the basis of that regulation, under which the Court acknowledged that there was a general presumption capable of justifying the refusal to disclose the documents in�a�file�relating�to�a�proceeding�under�Article�101�TFEU,�must�be�transposed�to�the�publication�of�decisions�on�infringements of Article 101 TFEU, the Court answered in the negative. In that connection, the Court relied on the�significant�differences�between�the�system�of�third-party�access�to�the�Commission’s�file�(provided�for�in�Regulation No 1049/2001) and the system relating to the publication, in compliance with the protection of business secrets (provided for in Article 30 of Regulation No 1/2003), of infringement decisions. The publication of a non-confidential�version�of�a�decision�finding�an�infringement�of�Article�101�TFEU�must�inter�alia�enable�victims�of�infringements to be provided with support in their actions for damages. However, the interests at issue must be weighed against the protection of rights conferred by EU law, in particular, on the undertakings concerned, such as the right to the protection of professional secrecy or business secrets.

The Court also considered that such publication does not undermine the protection which the applicant may claim�under�the�2002�Leniency�Notice,�since�that�protection�can�relate�only�to�the�determination�of�the�fine�and�the�treatment�of�the�documents�and�statements�specifically�targeted�by�that�notice.�The�only�protection�available�to an undertaking which has cooperated with the Commission in the context of a proceeding under Article 101 TFEU�is�the�protection�concerning�(i)�the�immunity�from�or�reduction�in�the�fine�in�return�for�providing�the�Commission�with�evidence�of�the�suspected�infringement�which�represents�significant�added�value�with�respect�to the information already in its possession, and (ii) the non-disclosure by the Commission of the documents and written statements received by it in accordance with its Leniency Notice.

79/ �Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).




5. STATE AID

In�the�area�of�State�aid,�mention�should�be�made�of�three�judgments.�The�first�concerns�the�review�carried�out�by�the�Commission�in�respect�of�existing�State�aid�which�may�subsequently�be�classified�as�unlawful�aid.�The�second addresses the question whether tax exemptions granted by a Member State to a religious community may be regarded as State aid of the kind prohibited by Article 107(1) TFEU. The last judgment deals with whether State aid granted to an undertaking that has been admitted, at its own request, to a national insolvency procedure may be withdrawn.

In its judgment in Commission v Italy (C-467/15 P, EU:C:2017:799), delivered on 25 October 2017, the Court set aside the judgment of the General Court 81 concerning the possibility, for the Commission, of classifying as new, and, where necessary, unlawful, aid not only the alteration of existing aid, but also all the existing aid to which that alteration relates. This case originated in Council Decision 2003/530 82 permitting Italy to take the place of milk producers for the purpose of paying a levy owed to the European Union for exceeding the national milk quota in 1995 and 2001 and allowing the producers concerned to repay their debt to that Member State by way of deferred payment without interest. The grant of that aid (‘the existing aid’) was in particular subject to a temporal limit applying to the system of staggered payments set at 14 years. Italy authorised the deferral of payment of the same aid in 2010 and 2011, after several further alterations, which resulted in the 14-year time limit being exceeded.�The�Commission�subsequently�adopted�the�contested�decision,�finding�that�Italy�had�made�successive�alterations to the existing aid scheme in breach of one of the conditions to which the approval of that aid had been�subject,�and�classified�as�new�and,�thus,�unlawful�aid�(since�the�measure�had�not�been�notified�to�the�Commission) not only the deferral of payment taken in isolation, but also the whole of the pre-existing system of staggered payments. 83 It therefore ordered the immediate recovery of the sums granted to producers who had�benefited�from�the�deferral�of�payment,�together�with�interest.�Italy�challenged�that�decision�before�the�General Court, which annulled the contested decision in part. The Commission then lodged an appeal challenging the General Court’s interpretation of the concept of ‘new aid’ set out in Article 1(c) of Regulation No 659/1999. 84

Against that background the Court held that — in contrast to the General Court’s assertions — the concept of ‘new aid’ was capable of covering not only the alteration of existing aid, but also the aid concerned by that alteration. Thus, according to the Court, existing aid which has been altered in breach of the compatibility conditions imposed can no longer be regarded as authorised and, therefore, loses the status of existing aid in its entirety. Consequently,�the�Commission�is�not�required�to�establish�that�the�alteration�affects�the�very�substance�of�the�pre-existing�aid.�According�to�the�Court,�such�an�interpretation�gives�the�best�assurance�of�the�effectiveness�of�the system of review of State aid in the European Union by promoting compliance by the Member State concerned with the authorisation conditions for the aid scheme. If a Member State makes an alteration to an existing aid scheme in breach of an authorisation condition for that scheme, that Member State will have no guarantee that

81/ �Judgment of the General Court of 24 June 2015, Italy v Commission (T-527/13, EU:T:2015:429).

82/ �Council Decision 2003/530/EC of 16 July 2003 on the compatibility with the common market of an aid that the Italian Republic intends to grant to its milk producers (OJ 2003 L 184, p. 15).

83/ �Commission Decision 2013/665/EU of 17 July 2013 on State aid SA.33726 (11/C) (ex SA.33726 (11/NN)) — granted by Italy (deferral of payment�of�the�milk�levy�in�Italy)�(notified�under�document�C(2013)�4046)�(OJ�2013�L�309,�p.�40).

84/ �Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1).





the�authorised�aid�scheme�will�not�be�affected�by�that�alteration�and�that�the�advantages�granted�on�the�basis�of that scheme will therefore be retained.

The Court therefore found that, in this case, the legislative alteration implementing the deferral of payment did not constitute an alteration of a purely formal or administrative nature, or an increase in the original budget of an aid scheme within the meaning of Article 4(1) of Regulation No 794/2004. 85

In the case giving rise to the judgment in Congregación de Escuelas Pías Provincia Betania (C-74/16, EU:C:2017:496), delivered on 27 June 2017, the Grand Chamber of the Court was called upon to rule on whether the tax exemptions granted by a Member State to a religious community constitute State aid of the kind prohibited by Article 107(1) TFEU. That question was submitted in the context of various tax exemptions granted to the Spanish Catholic Church under a 1979 agreement concluded between the Holy See and Spain before Spain’s accession to the European Union. In the main proceedings, a religious congregation had relied on that agreement to claim a refund of municipal tax paid on works carried out in a Church school near Madrid. The premises in question are used not only for State-regulated primary and secondary education, which is equivalent to the education provided in State schools�and�is�financed�entirely�from�public�funds,�but�also�for�other�school�activities�for�which�fees�are�charged.�The tax authorities had refused the claim for a refund on the ground that the tax exemption provided for in domestic law for works did not apply to an activity which had no religious purpose.

Proceedings having been brought by the religious congregation concerned, the referring court enquired whether such a tax exemption had to be regarded as State aid prohibited by EU law. In its reply, the Court ruled that a measure of that nature may fall under the prohibition in Article 107(1) TFEU if, and to the extent to which, the activities at issue are economic, a matter which it is for the referring court to determine.

The�Court�first�of�all�considered�that�the�educational�activities�of�the�congregation�which�were�not�subsidised�by�the Spanish State appeared to be economic in nature and were therefore capable of falling under Article 107(1) TFEU,�since�they�were�financed�essentially�by�private�contributions.�It�also�made�clear�that�the�exemption�at�issue�seemed�to�meet�two�of�the�four�conditions�in�order�to�be�classified�as�prohibited�State�aid,�inasmuch�as�it�confers�a selective economic advantage on the congregation running the school and entails a reduction in the municipal council’s revenue and hence the use of State resources. So far as the other two conditions are concerned, the Court considered that the exemption at issue might make the religious congregation’s educational service provision more attractive by comparison with that of other establishments that are also active on the same market and could therefore risk distorting competition. On the other hand, the Court pointed out that, under Article 2 of Regulation No 1998/2006, 86 aid not exceeding a ceiling of EUR 200 000 over a period of three years is deemed not�to�affect�trade�between�Member�States�and�not�to�distort�or�threaten�to�distort�competition;�such�measures�are therefore excluded from the concept of ‘State aid’. The Court ruled that it is nevertheless for the national court to determine whether that threshold has been reached in this case.

85/ �Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Regulation (EC) No 659/1999 (OJ 2004 L 140, p. 1).

86/ �Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles [107 and 108 TFEU] to de minimis aid (OJ 2006 L 379, p. 5).




Finally, as regards the agreement between Spain and the Holy See, the Court stated that although that agreement dates from before Spain’s accession to the European Union, the tax exemption at issue, which had been introduced into domestic legislation by an order of 2001, should not, as the case may be, be considered to be existing aid, but new aid.

In its judgment in Nerea (C-245/16, EU:C:2017:521), delivered on 6 July 2017, the Court ruled on the scope of the concept of ‘collective insolvency proceedings’ referred to in Article 1(7)(c) of Regulation No 800/2008 (General block exemption Regulation) 87 and on whether an undertaking that has been admitted, at its own request, to a national insolvency procedure is barred under the same provision from receiving aid awarded previously. Nerea, the applicant in the main proceedings, had been the recipient of State aid granted under a regional operational programme in Marche (Italy). Following Nerea’s application for admission to an arrangement with creditors as a going concern, the region of Marche withdrew the disputed aid on the ground that, under Article 1(7)(c) of Regulation�No�800/2008,�an�undertaking�subject�to�such�a�procedure�was�an�undertaking�in�difficulty�which�should not receive aid. An action having been brought before it by Nerea challenging that decision, the national court submitted two questions to the Court for a preliminary ruling.

By�its�first�question,�the�Court�was�required�to�rule�on�the�scope�of�the�concept�of�being�‘subject’�to�‘collective�insolvency proceedings’. It held that neither Article 1(7)(c) of Regulation No 800/2008 nor any other provision of that�regulation�draws�any�distinction�between�existing�collective�insolvency�proceedings�in�the�different�national�legal systems according to whether they are opened by the administrative and judicial authorities of the Member States or whether they are opened at the request of the undertaking concerned, as was the case here. Therefore, according to the Court, that concept does not cover only proceedings opened by administrative or judicial authorities of their own motion, but also those opened at the request of the undertaking concerned.

As regards the second question concerning the conclusions to be drawn from the fact that Nerea was subject to collective insolvency proceedings after the disputed aid had been granted, the Court pointed out that aid must be�considered�to�be�granted�at�the�moment�the�right�to�receive�it�is�conferred�on�the�beneficiary�and�that�that�is the time when the company’s eligibility to receive aid should be assessed. Furthermore, Article 1(7)(c) of Regulation No 800/2008 does not impose on the competent authorities of the Member States the obligation to carry out an independent examination of the undertaking’s actual situation in order to determine whether it is in�difficulty.�Thus,�the�fact�that�an�undertaking�satisfied�the�conditions�for�being�subject�to�collective�insolvency�proceedings�according�to�national�law�is�sufficient�to�prevent�State�aid�being�granted�to�it�under�Regulation�No 800/2008 or, if such aid has already been granted to it, to hold that it could not be granted in accordance with that�regulation�provided�that�those�conditions�were�satisfied�on�the�date�on�which�that�aid�was�granted.�However,�aid granted to an undertaking in compliance with Regulation No 800/2008 and, in particular, Article 1(6) thereof, cannot be withdrawn solely on the ground that that undertaking has been subject to collective insolvency proceedings subsequent to the date on which that aid was granted to it.

87/ �Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles [107 and 108 TFEU] (General block exemption Regulation) (OJ 2008 L 214, p. 3).




XII. FISCAL PROVISIONS

In�the�area�of�taxation,�five�judgments�are�worthy�of�note.�The�first�concerns�the�validity�of�various�provisions�of�Directive 2006/112. 88 The second addresses the question whether national courts are entitled to review the legality of a request for tax information submitted by another Member State under Directive 2011/16. 89 The third relates to the chargeability conditions for excise duty within the meaning of Article 9 of Directive 2008/118. 90 The fourth deals with the scope of the principle of respect for the rights of the defence in the context of national administrative procedures of inspection and establishment of the basis for VAT assessment. The last case is concerned with the principle that abusive practices are prohibited in the tax sphere.

In its judgment in RPO (C-390/15, EU:C:2017:174), mentioned earlier in this report, 91 the Court, sitting as the Grand Chamber,�confirmed�the�validity�of�the�provisions�of�Directive�2006/112�excluding�the�supply�of�digital�books�electronically from the reduced rate of VAT, while the Member States are able to apply such a rate to the supply of digital books on physical supports. The national court raised, among others, the question whether that exclusion infringed the principle of equal treatment as set out in Article 20 of the Charter.

After�confirming�that�those�provisions�of�Directive�2006/112�establish�a�difference�in�treatment�between�two�situations that are, however, comparable in the light of the objective pursued, namely, in the instant case, to promote�reading,�the�Court�examined�whether�that�difference�in�treatment�could�be�justified.�Since�such�justification�is�possible�where�the�difference�in�treatment�relates�to�a�legally�permitted�objective�and�is�proportionate�to�that�objective,�the�Court�first�of�all�pointed�out�that�the�exclusion�of�electronic�publications�from�the�reduced�rate�of�VAT�formed�part�of�a�specific�VAT�regime�for�e-commerce�intended�to�make�electronically�supplied�services�subject to clear, simple and uniform rules with a view to facilitating the administration of that tax by taxable persons and national tax authorities. While noting that the EU legislature enjoys a broad discretion when it adopts tax�measures,�the�Court�confirmed�that�that�objective�was�legally�permitted�and�that�the�contested�measure�was�appropriate for achieving it. Since the other requirements associated with the proportionality condition were also�met,�the�Court�therefore�confirmed�that�the�provisions�of�Directive�2006/112�at�issue�were�consistent�with�the principle of equal treatment set out in Article 20 of the Charter.

In the judgment in Berlioz Investment Fund (C-682/15, EU:C:2017:373), delivered on 16 May 2017 by the Grand Chamber, the Court examined whether the courts of one Member State may review the legality of requests for tax information sent by another Member State under Directive 2011/16. That question was raised in proceedings deriving from the refusal by a Luxembourg company to comply in full with a decision of the Luxembourg authorities ordering it to provide certain items of information requested by the French authorities under that directive. The request�for�information�was�specifically�concerned�with�dividends�paid�by�a�French�subsidiary�and�sought�to�clarify whether the conditions laid down in French law for the exemption of those dividends from withholding tax had been met. As a result of the Luxembourg company’s refusal to provide some of the information requested,

88/ �Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2009/47/EC of 5 May 2009 amending Directive 2006/112/EC as regards reduced rates of value added tax (OJ 2009 L 116, p. 18).

89/ �Council�Directive�2011/16/EU�of�15�February�2011�on�administrative�cooperation�in�the�field�of�taxation�and�repealing�Directive� 77/799/EEC (OJ 2011 L 64, p. 1).

90/ �Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2009 L 9, p. 12).

91/ �That judgment was also presented under Section III ‘Institutional provisions’.





on�the�ground�that�it�was�not�foreseeably�relevant,�it�received�a�fine.�Proceedings�having�been�brought�against�that�fine,�the�national�court�asked�the�Court�in�particular�whether�it�could�examine�the�merits�of�the�information�order of the Luxembourg authorities and, therefore, of the request for information on which the order was based.

The�Court�first�of�all�found�that�since�the�imposition�of�the�fine�on�the�Luxembourg�company�falls�within�the�scope�of�the�implementation�of�Directive�2011/16,�the�Charter�applies�in�the�instant�case.�In�addition,�after�confirming�that�the�Luxembourg�company�has�the�right�to�an�effective�remedy,�within�the�meaning�of�Article�47�of�the�Charter,�against the administrative penalty imposed on it, the Court made clear that, under that provision, the national court�before�which�such�an�action�has�been�brought�against�a�fine�imposed�for�failure�to�comply�with�an�order�to provide information, in the context of an exchange between national tax administrations pursuant to Directive 2011/16, must be able to review the legality of that order. Since only information that is foreseeably relevant in the light of the tax laws of the requesting Member State may be the subject of a request for information under Directive 2011/16, that requirement of relevance is, according to the Court, a condition of the legality of the order addressed to the relevant person in order to obtain the requested information and of the penalty imposed on that person for failure to comply with the order. However, the Court pointed out that the judicial review of the legality�of�the�order�is�limited�to�verifying�that�that�order�is�based�on�a�sufficiently�reasoned�request�by�the�requesting authority concerning information that is not — manifestly — devoid of any foreseeable relevance. That review entails that the court must have access to the request for information and, if necessary, to any other information sent by the requesting authority. On the other hand, since the relevant person may be barred from having access to the request for information because it is secret, he has a right of access only to the key information in the request for information in order to be given a fair hearing.

On 29 June 2017, the Court delivered its judgment in Commission v Portugal (C-126/15, EU:C:2017:504), in which it�ruled�on�the�chargeability�conditions�for�excise�duty,�within�the�meaning�of�the�first�paragraph�of�Article�9�of�Directive 2008/118 concerning the general arrangements for excise duty, interpreted in the light of the principle of�proportionality.�In�this�case,�an�action�for�failure�to�fulfil�obligations�had�been�brought�before�the�Court�seeking�a declaration that, by subjecting packets of cigarettes to a prohibition on marketing and sale to the public at the end�of�the�third�month�of�the�year�following�that�which�appears�on�the�marking�affixed,�the�Portuguese�Republic�had failed to comply with its obligations under that directive and with the principle of proportionality.

After�recalling,�first,�that�the�prevention�of�possible�tax�evasion,�tax�avoidance�and�abuse�is�an�objective�pursued�by Directive 2008/118, the Court pointed out that releases for consumption in excessive quantities of packets of cigarettes at the end of the year, in anticipation of a future increase in the rate of excise duty, constitute a form of abuse that the Member States are entitled to prevent by the appropriate measures. It added that, since the first�paragraph�of�Article�9�of�the�directive�refers�to�national�law�in�order�to�determine�the�conditions�of�chargeability�and the rate of excise duty, such a right recognised to the Member States necessarily implies that they have the possibility to adopt measures such as those at issue in this case.

However, the Court also recalled that, in the exercise of the powers conferred on them by EU law, the Member States must comply with the principle of proportionality. That principle requires Member States to employ means which,�while�enabling�them�effectively�to�attain�the�objective�pursued�by�their�domestic�laws,�must�not�go�beyond�what is necessary and are the least detrimental to the objectives and the principles laid down by the relevant EU legislation. The Court ruled that the prohibition on the marketing and sale of cigarettes at issue was appropriate to achieve the legitimate objectives of combating tax evasion and tax avoidance and protecting public health. Nonetheless, since that prohibition applied in all cases, including where the rate of excise duty decreases or remains unchanged, the Court held that it did not appear necessary to achieve those objectives in so far as they could be achieved in a manner which is less restrictive and just as appropriate if the contested measure applied only in the case of an increase in the rate of excise duty on cigarettes. Therefore, the Court held that, by the




measures�at�issue,�the�Portuguese�Republic�had�failed�to�fulfil�its�obligations�under�the�first�paragraph�of�Article�9�of Directive 2008/118 and under the principle of proportionality.

In the judgment in Ispas (C-298/16, EU:C:2017:843),�delivered�on�9�November�2017,�the�Court�provided�clarification�on the scope of the general principle of EU law of respect for the rights of the defence in the context of national administrative procedures of inspection and establishment of the basis for VAT assessment. In this case, the applicants had been subject to a tax inspection, following which tax assessment notices imposing additional VAT on them had been issued. The applicants had argued before the national court that those tax assessment notices were null and void because their rights of defence had been infringed. They submitted in particular that the tax authorities ought to have given them access of the latter’s own motion to all the relevant information on the basis of which the authorities had adopted the tax inspection report and issued the two notices, so that they would subsequently be in a position to challenge them.

The�Court�first�of�all�recalled�in�that�connection�that�respect�for�the�rights�of�the�defence�is�a�general�principle�of�EU�law�according�to�which�the�addressees�of�decisions�which�significantly�affect�their�interests�must�be�placed�in�a�position�in�which�they�can�effectively�make�known�their�views�as�regards�the�information�on�which�the�authorities intend to base their decision. National authorities are subject to that obligation when they take decisions which come within the scope of EU law. According to the Court, that is particularly the case where a Member State, in order to comply with the obligation arising from the application of EU law to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing fraud, submits taxpayers to a tax inspection procedure.

The Court thus held that the general principle of EU law of respect for the rights of the defence must be interpreted as a requirement that, in administrative procedures of inspection and establishment of the basis for the assessment of VAT, an individual is to have the opportunity to have communicated to him, at his request and not on the initiative�of�the�authorities,�the�information�and�documents�in�the�administrative�file�and�considered�by�the�public�authority when it adopted its decision, unless objectives of public interest warrant restricting access to that information and those documents. That general principle is not an unfettered prerogative and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure at issue and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. The Court made clear in that respect that, in a procedure of tax inspection and establishment of the basis for VAT assessment, such restrictions may,�in�particular,�be�designed�to�protect�requirements�of�confidentiality�or�professional�secrecy,�which�are�liable�to be infringed by access to certain information and certain documents.

In its judgment in Cussens and Others (C-251/16, EU:C:2017:881), delivered on 22 November 2017, the Court ruled on the scope of the principle that abusive practices are prohibited in the tax sphere, particularly in the context of VAT. In the main proceedings, the applicants had constructed several holiday homes intended for sale which they had leased out for a term of more than 20 years to a company associated with them. At the same time, they had entered into a contract with that company providing that the homes would be leased back to them for a term of two years. Those two leases were extinguished by mutual surrender one month later and the applicants sold the homes to third parties. Under national legislation, no VAT was payable on those sales, as only the long lease was�subject�to�VAT.�However,�the�tax�authorities�classified�that�lease�as�abusive�and�sought�payment�of�additional�VAT in respect of the sales. Proceedings having been brought before it, the referring court noted that there were no national rules which would require the tax authorities to disregard transactions constituting an abusive practice. Accordingly, it decided to submit a number of questions to the Court for a preliminary ruling in order to determine, in particular, whether the principle that abusive practices are prohibited provided for in EU law, as





recognised in the judgment in Halifax and Others, 92 requires the tax authorities’ approach in this case to be taken.

The�Court�first�of�all�found�that�the�principle�that�abusive�practices�are�prohibited,�as�applied�in�the�sphere�of�VAT by the case-law stemming from the judgment in Halifax and Others, is not a rule established by a directive, but is based on the case-law. That principle, which — according to the Court — displays the comprehensive character which is inherent in general principles of EU law, may be relied on against a taxable person to refuse him the right to exemption from VAT, even in the absence of provisions of national law providing for such refusal. Although the transactions at issue were carried out before the judgment in Halifax and Others was delivered, the�Court�confirmed�that�the�principles�of�legal�certainty�and�of�the�protection�of�legitimate�expectations�do�not�preclude�the�application,�in�the�main�proceedings,�of�the�principle�flowing�from�that�judgment�that�abusive�practices�are�prohibited.�The�interpretation�which�the�Court�gives�to�EU�law�clarifies�and�defines�the�meaning�and scope of that law as it must be, or ought to have been, understood and applied from the date of its entry into force. Finally, the Court held that if the properties at issue had not yet been actually used by their owner or tenant before being sold to third-party purchasers, a matter which it was for the referring court to verify in the instant case, the supply of those properties would be liable to result in the accrual of a tax advantage contrary to the purpose of Directive 77/388, 93 thereby falling within the scope of the principle that abusive practices are prohibited.

XIII. APPROXIMATION OF LAWS

1. INTELLECTUAL PROPERTY

In�the�field�of�intellectual�property,�three�judgments�are�worthy�of�note.�The�first�two�concern�the�concept�of�‘communication�to�the�public’�in�the�field�of�copyright�while�the�third�addresses�the�interpretation�of�the�‘repair’�clause in the sphere of Community designs.

In the two judgments in Stichting Brein (C-527/15, EU:C:2017:300 and C-610/15, EU:C:2017:456), delivered on 26 April and 14 June 2017 respectively, the Court was required to examine, among other things, the concept of ‘communication to the public’ within the meaning of Article 3(1) Directive 2001/29. 94

In both cases, proceedings had been brought before the referring courts by a Netherlands foundation for the protection�of�the�interests�of�copyright�holders.�The�first�case�concerned�a�dispute�between�that�foundation�and�a seller of a multimedia player on which there were pre-installed add-ons, available on the internet, containing hyperlinks to websites — that were freely accessible to the public — on which copyright-protected works had been made publicly available without the consent of the copyright holders. In the second case, the dispute related to requests made by that foundation seeking an order requiring internet access providers to block the domain

92/ �Judgment of the Court of 21 February 2006, Halifax and Others (C-255/02, EU:C:2006:121).

93/ �Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

94/ �Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).






names and IP addresses of the online sharing platform ‘The Pirate Bay’ which, by means of indexation of metadata referring to protected works and the provision of a search engine, allowed users of that platform to locate those works and to share them in the context of a peer-to-peer network.

In�both�judgments,�the�Court�first�of�all�recalled�its�previous�case-law,�95 according to which the principal objective of Directive 2001/29 is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public. It follows that the concept of ‘communication to the public’ should be understood in a broad sense and requires an individual assessment. Furthermore, it is clear from Article 3(1) of Directive 2001/29 that the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’.

Thus, according to the Court, in order to determine whether a user is making a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is necessary to take into account several complementary criteria,�which�are�not�autonomous�and�are�interdependent.�Those�criteria�include,�first,�the�indispensable�role�played by the user and the deliberate nature of his intervention. That user makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, and does so in particular where, without that intervention, his customers would not be able to enjoy the broadcast�work�or�would�find�it�difficult�to�do�so.�Secondly,�the�Court�specified�that�the�concept�of�the�‘public’�refers to an indeterminate number of potential viewers and implies, moreover, a fairly large number of people. The Court also noted that in order to be categorised as a ‘communication to the public’, a protected work must be�communicated�using�specific�technical�means,�different�from�those�previously�used�or,�failing�that,�to�a�‘new�public’, that is to say, to a public that was not already taken into account by the copyright holders when they authorised�the�initial�communication�of�their�work�to�the�public.�Finally,�the�Court�underlined�that�the�profit-making nature of a communication, within the meaning of Article 3(1) of Directive 2001/29, is not irrelevant.

Based on the above criteria, the Court considered in these two judgments that the sale of a multimedia player, such as that at issue in the main proceedings, as well as the making available and management, on the internet, of the sharing platform ‘The Pirate Bay’, constitute, in the circumstances of the instant case, a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29.

On 20 December 2017, in its judgment in Acacia and D’Amato (C-397/16 and C-435/16, EU:C:2017:992), the Court ruled on the interpretation of the ‘repair’ clause provided for in Article 110(1) of Regulation No 6/2002. 96 Under that clause, protection as a Community design does not exist for a design which constitutes a component part of a complex product used for the purpose of the repair of that complex product so as to restore its original appearance. This judgment was delivered in the context of infringement proceedings in Italy and Germany between, on the one hand, two car manufacturers, holders of Community designs of alloy car wheel rims, and, on the other, Acacia and its managing director, who manufacture replica wheels rims that are often aesthetically or functionally identical to the original equipment wheel rims.

The�Court�was�first�asked�whether�Article�110(1)�of�Regulation�No�6/2002�makes�the�exclusion�of�protection�provided for in that article subject to the condition that the protected design of the component part at issue is dependent upon the appearance of the complex product into which it is incorporated. The car manufacturers appearing�as�parties�to�the�main�proceedings�essentially�argued�in�that�respect�that�the�exclusion�was�not�justified�

95/ �See, in particular, judgments of the Court of 31 May 2016, Reha Training (C-117/15, EU:C:2016:379), and of 8 September 2016, GS Media (C-160/15, EU:C:2016:644).

96/ �Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).






in�relation�to�car�wheel�rims,�the�shape�of�which�is�not�dictated�by�the�appearance�of�the�vehicle�fitted�with�them.�The Court drew attention to the objective pursued by Article 110(1) of Regulation No 6/2002, which is to avoid the creation of captive markets in certain spare parts and, in particular, to prevent a consumer who has bought a�long-lasting�and�perhaps�expensive�product�from�being�indefinitely�tied,�for�the�purchase�of�external�parts,�to�the manufacturer of the complex product. From that point of view, and applying a literal and teleological interpretation, the Court held that the scope of that provision is not limited to component parts of a complex product ‘upon whose appearance the protected design is dependent’, pointing out that that interpretation contributed to the objective of the ‘repair’ clause to limit the creation of captive markets in spare parts.

The Court was also asked about the conditions governing the application of the exclusion provided for in the ‘repair’�clause.�The�Court�first�of�all�pointed�out�that�that�exclusion�is�applicable�only�to�component�parts�which�are protected as a Community design and which, therefore, satisfy the conditions for protection laid down in particular in Article 4(2) of Regulation No 6/2002. Under that provision, a product which constitutes a component part�of�a�complex�product�is�to�be�protected�where,�first,�the�component�part,�once�it�has�been�incorporated�into a complex product, remains visible during normal use of that product and, secondly, the visible features of the�component�part�fulfil�in�themselves�the�requirements�as�to�novelty�and�individual�character�set�out�in�Article 4(1) of that regulation. This applies to the Community designs of car wheel rims of which the manufacturers concerned are the holders. Next, the Court considered those wheel rims to be ‘component parts of a complex product’ within the meaning of Article 110(1), such a wheel rim being a component of a car, without which that product could not be subject to normal use. As regards the condition that the component part at issue be ‘used … for the purpose of the repair of that complex product’, the Court pointed out that the ‘repair’ clause excludes any use of a component part for reasons of preference or purely of convenience, such as, inter alia, the replacement of a part for aesthetic purposes or customisation of the complex product, but rather that it requires that its use be necessary for the repair of a complex product that has become defective. Finally, the Court considered that the repair had be carried out so as to restore the complex product to its original appearance. In that regard, it drew attention to the need for a component part that is used to repair the appearance of the complex product within the meaning of that provision to be visible. In the light of those considerations, the Court concluded that Article 110(1) of Regulation No 6/2002 applies only to component parts of a complex product that are visually identical to original parts, which is not the case if the replacement part does not correspond, in terms of its colour or its dimensions, to the original part, or if the appearance of a complex product has changed since it was placed on the market.

Finally, the Court was asked whether eligibility for the exclusion provided for in Article 110(1) of Regulation No 6/2002 requires the manufacturer or seller of a component part of a complex product to ensure that the component part can be purchased exclusively for repair purposes, and if so, how. The Court made clear that the manufacturer�or�seller�of�a�component�part�of�a�complex�product�which�seeks�to�benefit�from�the�derogation�provided for in that provision is under a duty of diligence. In that connection, such a manufacturer or seller must, in particular, inform the downstream user, through a clear and visible indication on the product, on its packaging, in the catalogues or in the sales documents, that the component part concerned incorporates a design of which they are not the holder and that the part is intended exclusively to be used for the purpose of the repair of the complex product so as to restore its original appearance. It is also required to ensure, through appropriate means, in particular contractual means, that downstream users do not intend to use the component parts at issue in a way that does not comply with the conditions prescribed by Article 110(1) of Regulation No 6/2002 and, furthermore, to refrain from selling such a component part where they know or ought reasonably to know that the part in question will not be used in accordance with the prescribed conditions.



2. PROTECTION OF PERSONAL DATA

In�the�field�of�data�protection,�three�judgments�merit�special�attention:�the�first�required�the�Court�to�clarify�the�information obligations applicable in connection with payment services in the internal market; the second concerned the erasure of personal data from a companies register; and the third resulted in the Court providing clarification�as�regards�the�concept�of�‘personal�data’�in�the�context�of�a�professional�examination.�Reference�should also be made to Opinion 1/15 (EU:C:2017:592), which concerns the compatibility with the provisions of the Treaties and the Charter of the agreement negotiated between Canada and the European Union on the transfer and processing of Passenger Name Record (PNR) data. 97

On 25 January 2017, in the judgment in BAWAG (C-375/15, EU:C:2017:38),�the�Court�ruled,�first,�on�the�concept�of�‘durable medium’ within the meaning of Directive 2007/64 98 on payment services in the internal market and, secondly, on the scope of the obligation on payment service providers to supply information to users.

As regards the question whether the website of a bank can be considered to be a durable medium, the Court stated that that website must enable the payment service user to store information addressed personally to him in a way accessible for future reference for a period of time adequate to the purposes of the information and which allows the unchanged reproduction of the information stored. Furthermore, any possibility that the payment service provider or another professional to whom the management of that site has been entrusted could change the content unilaterally must be excluded.

So far as concerns the obligation on the payment service provider to supply information to users, the Court held that where such information is transmitted through the electronic mailbox of an online banking internet website, it may not be considered to have been supplied on a durable medium unless these two conditions are met. First, the website must allow the user concerned to store information addressed to him personally in such a way that he�may�access�it�and�reproduce�it�unchanged�for�an�adequate�period,�without�any�unilateral�modification�of�its�content by that service provider or by another professional being possible. Secondly, if the payment service user is obliged to consult the internet website in order to become aware of that information, the transmission of the information must be accompanied by active behaviour on the part of the payment service provider aimed at drawing the user’s attention to the existence and availability of that information on the website.

In the event of the payment service user being obliged to consult such a website in order to become aware of the relevant information, that information is merely made available to the user when the transmission of the information is not accompanied by such active behaviour on the part of the payment service provider.

97/ �That Opinion is presented in Section I ‘Fundamental rights’.

98/ �Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).





In its judgment in Manni (C-398/15, EU:C:2017:197), delivered on 9 March 2017, the Court ruled on whether a natural person is able to have personal data relating to him, contained in the companies register in connection with a company that has been wound up, erased,�in�the�light�of�Article�6(1)(e),�Article�12(b)�and�subparagraph�(a)�of�the�first�paragraph of Article 14 of Directive 95/46, 99 read in conjunction with Article 3 of First Directive 68/151. 100 The main proceedings involved a dispute between the sole director of a company and a chamber of commerce concerning the latter’s refusal to delete from the companies register certain personal data linking that person to�the�liquidation�of�another�company,�which�had�been�struck�off�the�companies�register�following�liquidation�proceedings. In support of his action, the sole director had argued in particular that the information at issue was prejudicial to his current economic activity.

As�regards�the�accessibility�of�personal�data�held�in�the�companies�register�to�third�parties,�the�Court�first�of�all�pointed out that the public nature of such registers is intended to ensure legal certainty in dealings between companies and third parties and to protect, in particular, the interests of third parties in relation to joint stock companies�and�limited�liability�companies,�since�the�only�safeguards�they�offer�to�third�parties�are�their�assets.�Moreover, questions requiring personal data held in the companies register may arise for many years after a company has ceased to exist. In those circumstances, the Court considered that Member States cannot guarantee that natural persons whose data are included in the companies register in connection with a given company have the right to obtain, after a certain period of time from the dissolution of the company, the erasure of personal data concerning them.

Since that interpretation of the provisions of Directive 95/46 may infringe the right to respect for the private life of the persons concerned and their right to protection of personal data as guaranteed by Articles 7 and 8 of the Charter, the Court also made clear that it does not result in disproportionate interference with those fundamental rights. It pointed out in that respect that only a limited number of personal data items are entered in the companies register�and�that�it�is�moreover�justified�that�natural�persons�who�choose�to�participate�in�trade�through�a�joint�stock company or limited liability company, whose only safeguards for third parties are the assets of that company, should be required to disclose data relating to their identity and functions within the company. That said, the Court�does�not�exclude�the�possibility�that,�in�specific�situations,�overriding�and�legitimate�reasons�relating�to�the�specific�case�of�the�person�may�justify,�exceptionally,�that�access�to�personal�data�concerning�him�should�be�limited,�upon�expiry�of�a�sufficiently�long�period�after�the�dissolution�of�the�company�in�question,�to�third�parties�who�can�demonstrate�a�specific�interest�in�consulting�that�data.�It�is,�however,�for�each�Member�State�to�decide�whether it would be desirable to have such a limitation of access in its national legal system.

In the judgment in Nowak (C-434/16, EU:C:2017:582),�delivered�on�20�December�2017,�the�Court�confirmed�that�the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data, within the meaning of Article 2(a) of Directive 95/46. In the main proceedings, the applicant had, after failing an examination set by the Institute of Chartered Accountants of Ireland, submitted a data access request seeking all the personal data relating to him held by that organisation. The Institute of Chartered Accountants of Ireland sent the candidate a number of documents but refused to provide him with his examination script, on the ground that it did not contain personal data relating

99/ �Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

100/ �First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English Special Edition 1968 (I), p. 41), as amended by Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003 (OJ 2003 L 221, p. 13).





to him. Proceedings having been brought before it by the unsuccessful candidate, the national court decided to refer a question to the Court for a preliminary ruling.

After�recalling�that�Article�2(a)�of�Directive�95/46�defines�personal�data�as�‘any�information�relating�to�an�identified�or�identifiable�natural�person’,�the�Court�first�of�all�noted�that�a�candidate�at�a�professional�examination�is�a�natural�person�who�can�be�identified,�either�directly,�through�his�name,�or�indirectly,�through�an�identification�number, these being placed either on the examination script itself or on its cover sheet. Referring to the aim of the EU legislature to assign a wide scope to the concept of ‘personal data’ within the meaning of Directive 95/26, the Court went on to observe that that concept is not restricted to information that is sensitive or private, but potentially encompasses all kinds of information, not only objective but also subjective, in the form of opinions and assessments, provided that it ‘relates’ to the data subject. The written answers submitted by a candidate at a professional examination constitute information that is linked to him as a person, particularly since the content of�those�answers�reflects�and�serves�as�a�basis�for�evaluating�the�extent�of�the�candidate’s�knowledge�and�competence�in�a�given�field�and,�in�some�cases,�his�thought�processes,�judgment�and�capacity�for�critical�thinking.�Furthermore, the use of that information, one consequence of that use being the candidate’s success or failure at�the�examination�concerned,�is�liable�to�have�an�effect�on�his�rights�and�interests,�in�that�it�may�determine�or�influence,�for�example,�his�chances�of�entering�the�profession�aspired�to�or�of�obtaining�the�post�sought.�As�regards the comments of the examiner on the candidate’s answers, the Court considered that they also constitute information relating to that candidate.

Finally, the Court made clear that if written answers and comments contained in a written test were not to be classified�as�‘personal�data’,�that�would�have�the�effect�of�entirely�excluding�that�information�from�the�obligation�to comply with the principles and safeguards that must be observed in the area of personal data protection. That classification�cannot�be�affected�by�the�fact�that�the�consequence�of�it�is,�in�principle,�that�the�candidate�has�rights�of�access�and�rectification�under�Directive�95/46,�given�that�those�rights,�which�do�not�extend�to�the�examination questions and do not allow candidates to correct answers that are incorrect, serves the purpose of that directive of guaranteeing the protection of candidates’ right to privacy with regard to the processing of data relating to them.

3. TELECOMMUNICATIONS

In its judgment in Europa Way and Persidera (C-560/15, EU:C:2017:593), delivered on 26 July 2017, the Court was called upon to examine whether a Member State is able, in the light of Directives 2002/20, 101 2002/21 102 and 2002/77, 103 to replace a free-of-charge selection procedure for the allocation of radio frequencies, commenced in order to remedy the unlawful exclusion of certain operators from the market, with a fees-based procedure initiated under an amended Radio Frequency Allocation Plan subsequent to a reduction in the number of those frequencies.

The�Court�first�of�all�ruled�that�Article�3(3a)�of�Directive�2002/21�must�be�interpreted�as�precluding�the�annulment,�by a national legislature, of an ongoing selection procedure for the allocation of radio frequencies conducted by

101/ �Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (OJ 2002 L 108, p. 21).

102/ �Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (OJ 2002 L 108, p. 33).

103/ �Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21).




the competent national regulatory authority, which was suspended by ministerial order, where the national legislature and ministry concerned did not act as appeal bodies within the meaning of Article 4 of that directive. Under Article 3(3a) of Directive 2002/21, those bodies have the exclusive power to suspend or overturn decisions by the national regulatory authorities. Since, in this case, the national legislature and ministry concerned did not act as appeal bodies, the requirements relating to the independence of national regulatory authorities preclude intervention such as that at issue.

Secondly, the Court found that Article 9 of Directive 2002/21, Articles 3, 5 and 7 of Directive 2002/20 and Articles 2 and 4 of Directive 2002/77 must be interpreted as not precluding a free-of-charge selection procedure for the allocation of radio frequencies, which has been commenced in order to remedy the unlawful exclusion of certain operators from the market, from being replaced by a fees-based procedure commenced under an amended Radio Frequency Allocation Plan after a reduction in their number, provided that the new selection procedure is based on objective, transparent, non-discriminatory and proportionate criteria and that it is in line with the objectives laid down in Article 8(2) to (4) of Directive 2002/21. It is for the national court to ascertain, taking into account all the relevant circumstances of the case, whether the conditions set out in the fee-based selection procedure are such as to allow an actual entry of new entrants into the digital television market without unduly favouring analogue or digital incumbents.

Finally, the Court pointed out that principle of legitimate expectations must be interpreted as not precluding the annulment of a selection procedure for the allocation of radio frequencies on the sole ground that operators had been invited to tender and, as the only tenderers, would have been granted rights to use digital terrestrial broadcasting frequencies for radio and television had the procedure not been annulled.

4. ELECTRONIC COMMERCE

In the judgment of 4 May 2017 in Vanderborght (C-339/15, EU:C:2017:335), the Court concluded that Article 56 TFEU and Directive 2000/31 104 on certain legal aspects of information society services, in particular electronic commerce, in the internal market preclude national legislation which prohibits any form of electronic commercial communication aimed at promoting oral and dental care, including by means of a website created by a dentist.

The Court took the view that although the content and form of the commercial communications may legitimately be subject to professional rules, such rules cannot include a general and absolute prohibition of any type of online advertising aimed at promoting the activity of a dentist.

It also considered that a prohibition of advertising for a certain activity is liable to restrict the possibility, for the persons carrying on that activity, of making themselves known to their potential clientele and of promoting the services�which�they�offer�to�their�clientele.�Consequently,�such�a�restriction�constitutes�a�restriction�on�the�freedom to provide services.

The Court nonetheless accepted that the objectives of the legislation in question, that is to say, the protection and dignity of the profession of dentistry, are overriding reasons in the public interest capable of justifying a restriction on the freedom to provide services. The extensive use of advertising or the selection of aggressive promotional�messages,�even�such�as�to�mislead�patients�as�to�the�care�being�offered,�by�damaging�the�image�of�the profession of dentist, by distorting the relationship between dentists and their patients, and by promoting

104/ �Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).




the provision of inappropriate and unnecessary care, may undermine the protection of health and compromise the dignity of the profession of dentist.

That�being�the�case,�the�Court�finds�that�a�general�and�absolute�prohibition�of�any�advertising�exceeds�what�is�necessary to attain the objectives pursued. Those objectives could be attained through the use of less restrictive measures supervising, closely if necessary, the form and manner which the communication tools used by dentists may legitimately have.

5. TRANSFER OF UNDERTAKINGS

In its judgment in Federatie Nederlandse Vakvereniging and Others (C-126/16, EU:C:2017:489), delivered on 22�June�2017,�the�Court�was�required�to�rule,�for�the�first�time,�on�the�applicability of the scheme for the protection of employees in the event of a transfer of undertakings, established by Directive 2001/23, 105 in a ‘pre-pack’ situation. A ‘pre-pack’ is a transaction involving assets which is prepared before the declaration of insolvency of a company, with�the�consent�of�a�prospective�insolvency�administrator,�appointed�by�a�court,�and�is�put�into�effect�by�that�administrator immediately after the declaration of insolvency. In the case in point, on the date of the declaration of insolvency of a Netherlands company, a pre-pack had been signed by that company’s insolvency administrator and�the�new�undertaking,�under�which�the�latter�agreed�to�offer�employment�to�almost�2�600�employees�of�the�company.�However,�over�1�000�employees�were�ultimately�dismissed�and�were�not�offered�new�contracts�of�employment.

The�Court�first�of�all�recalled�that�Article�5(1)�of�Directive�2001/23�states�that�the�scheme�for�the�protection�of�employees, referred to in Articles 3 and 4 of the directive, does not apply to transfers of undertakings where the transferor is the subject of bankruptcy proceedings or any analogous insolvency proceedings. A ‘pre-pack’ procedure, in fact entailing insolvency, may therefore be covered by the concept of ‘bankruptcy proceedings or any analogous insolvency proceedings’. Article 5(1) also requires the bankruptcy proceedings or any analogous insolvency proceedings to be instituted with a view to liquidation of the assets of the transferor. The Court pointed out that a procedure aimed at ensuring the continuation of the undertaking in question did not satisfy that requirement. In that respect, it made clear that a procedure is aimed at ensuring the continuation of the undertaking where that procedure is designed to preserve the operational character of the undertaking or of its viable units. A ‘pre-pack’ procedure is aimed at preparing the transfer of the undertaking down to its very last detail in order to enable a swift relaunch of the undertaking’s viable units once the insolvency has been declared and in order to avoid the disruption that would result from an abrupt cessation of the undertaking’s activities on the day of the declaration of insolvency, so as to safeguard the value of the undertaking and the employment posts. In those circumstances, since such a procedure is not ultimately aimed at liquidating the undertaking, the economic and�social�objectives�it�pursues�are�no�explanation�of,�or�justification�for,�the�employees�of�the�undertaking�concerned losing the rights conferred on them by Directive 2001/23 when all or part of that undertaking is transferred. The Court therefore concluded that a ‘pre-pack’ procedure does not satisfy all the conditions laid down in Article 5(1) of Directive 2001/23 and, accordingly, there can be no derogation, in the context of such a procedure, from the protection scheme laid down in Articles 3 and 4 of that directive.

105/ �Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).




6. FOODSTUFFS

In its judgment in Fidenato and Others (C-111/16, EU:C:2017:676), delivered on 13 September 2017, the Court ruled on whether Member States are able to adopt emergency measures regarding genetically modified food and feed on the basis of the precautionary principle. In 1998, the Commission authorised the placing on the market of genetically�modified�maize�MON�810.�In�doing�so,�it�referred�to�the�opinion�of�the�Scientific�Committee�which�took�the�view�that�there�was�no�reason�to�believe�that�that�product�would�have�any�adverse�effects�on�human�health or the environment. In 2013, the Italian Government asked the Commission to adopt emergency measures to�prohibit�the�cultivation�of�maize�MON�810�in�the�light�of�new�scientific�studies�carried�out�by�two�Italian�research�institutes.�On�the�basis�of�a�scientific�opinion�issued�by�the�European�Food�Safety�Authority�(EFSA),�the�Commission�concluded that there was no new science-based evidence to support the requested emergency measures. Despite this, in 2013 the Italian Government adopted a decree prohibiting the cultivation of MON 810 in Italian territory. The applicants in the main proceedings were subsequently prosecuted for cultivating maize MON 810 in breach of that decree.

The Court held that provisional risk management measures which may be adopted on the basis of the precautionary principle and the emergency measures taken pursuant to Article 34 of Regulation No 1829/2003 106 do not operate according to the same system. It is clear from Article 7 of Regulation No 178/2002 107 that the adoption of those provisional measures is subject to the condition that, following an assessment of available information, the possibility�of�harmful�effects�on�health�is�identified�but�that�scientific�uncertainty�also�persists.�By�contrast,�Article 34 of Regulation No 1829/2003 permits the use of emergency measures when it is ‘evident’ that products authorised by that regulation are likely to constitute a ‘serious’ risk to human health, animal health or the environment. The Court therefore concluded that Article 34 of Regulation No 1829/2003, read in conjunction with the precautionary principle as set out in Article 7 of Regulation No 178/2002, does not give Member States the option of adopting interim emergency measures solely on the basis of that principle, without the substantive conditions�set�out�in�Article�34�of�Regulation�No�1829/2003�being�satisfied.

106/ �Regulation�(EC)�No�1829/2003�of�the�European�Parliament�and�of�the�Council�of�22�September�2003�on�genetically�modified�food�and�feed (OJ 2003 L 268, p. 1).

107/ �Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).




XIV. ECONOMIC AND MONETARY POLICY

In�the�sphere�of�economic�and�monetary�policy,�mention�should�be�made�of�two�judgments.�The�first�is�concerned�with�the�Council’s�decision�to�impose�a�fine�on�a�Member�State�for�the�manipulation�of�data�in�connection�with�its budget. The second, delivered in Florescu and Others (C-258/14), relates to the Memorandum of Understanding with�Romania�regarding�financial�assistance�granted�by�the�European�Union.�108

On 20 December 2017, in its judgment in Spain v Council (C-521/15, EU:C:2017:982), the Grand Chamber of the Court dismissed in its entirety the action for annulment brought by the Kingdom of Spain against Council Implementing Decision 2015/1289 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia. 109

That implementing decision had been adopted on the basis of Article 8(1) of Regulation No 1173/2011, 110 under which�the�Council,�acting�on�a�recommendation�by�the�Commission,�may�decide�to�impose�a�fine�on�a�Member�State�that�intentionally�or�by�serious�negligence�misrepresents�deficit�and�debt�data.�It�therefore�falls�within�the�Council’s task of economic and budgetary surveillance of the euro area.

The�Court�was�first�of�all�required�to�adjudicate�on�whether�it�had�jurisdiction�to�decide�on�such�an�action�given�that, in accordance with Article 51 of the Statute of the Court of Justice of the European Union, actions for annulment brought by a Member State against implementing decisions of the Council fall within the jurisdiction of the General Court where those decisions have been adopted pursuant to Article 291(2) TFEU. It found that even if the contested decision had to be regarded as an act adopted in the exercise of an implementing power, in so far as it was adopted under the powers conferred on the Council by Regulation No 1173/2011, Article 291(2) TFEU does not, however, constitute the legal basis for the exercise of that power. The Court stated that Article 291(2) TFEU relates solely to legally binding acts of the European Union which lend themselves in principle to implementation by the Member States, which is clearly not the case as regards Regulation No 1173/2011 because that regulation establishes�a�power�consisting�in�the�imposition�of�a�fine�on�a�Member�State.�It�therefore�confirmed�that�it�had�jurisdiction to hear the action for annulment brought by the Kingdom of Spain against the contested decision.

As regards the observance of the Kingdom of Spain’s rights of defence in the procedure leading to the adoption of the contested decision, the Court recalled that Regulation No 1173/2011 empowers the Commission to initiate an�investigation�when�it�finds�that�there�are�serious�indications�of�the�existence�of�misrepresentation�in�relation�to�the�deficit�or�debt�of�a�Member�State,�while�requiring�the�Commission�to�respect�fully�the�rights�of�the�defence�of�the�Member�State�concerned�before�submitting�a�proposal�to�the�Council�for�the�imposition�of�a�fine.�In�that�context, the Court made clear that the provisions of Regulation No 1173/2011 do not prevent the information serving�as�the�basis�for�the�Council’s�decision�to�impose�a�fine�from�being�gathered�by�Eurostat�during�visits�in�the Member State concerned prior to the adoption by the Commission of the decision to launch an investigation. Under the powers conferred on it by Regulation No 479/2009, 111 Eurostat was moreover entitled to organise

108/ �That judgment is presented in Section I ‘Fundamental Rights’.

109/ �Council�Implementing�Decision�(EU)�2015/1289�of�13�July�2015�imposing�a�fine�on�Spain�for�the�manipulation�of�deficit�data�in�the�Autonomous Community of Valencia (OJ 2015 L 198, p. 19, and corrigendum OJ 2015 L 291, p. 10).

110/ �Regulation�(EU)�No�1173/2011�of�the�European�Parliament�and�of�the�Council�of�16�November�2011�on�the�effective�enforcement�of�budgetary surveillance in the euro area (OJ 2011 L 306, p. 1).

111/ �Council�Regulation�(EC)�No�479/2009�of�25�May�2009�on�the�application�of�the�Protocol�on�the�excessive�deficit�procedure�annexed�to�the Treaty establishing the European Community (OJ 2009 L 145, p. 1).




such visits in Spain and to gather, in the course of those visits, items of evidence relating to the possible manipulation of economic and budgetary data. Since the circumstances in which that information had been gathered in the instant case were also consistent with the requirements laid down by the EU legislature, and since the exercise of the Kingdom of Spain’s rights of defence in the context of the investigation procedure had not been impaired by the various visits by Eurostat, the Court found that the Council had not infringed the Kingdom of Spain’s rights of defence in this case.

As the Kingdom of Spain had also pleaded infringement of the right to good administration in the investigation conducted�by�the�Commission�after�Eurostat’s�visits,�the�Court�confirmed�that�that�right,�set�out�in�Article�41�of�the Charter, is a general principle of EU law which may be relied on by the Member States. It is therefore incumbent on the EU institutions to comply with the requirement of impartiality in the context of administrative procedures that�are�initiated�against�Member�States�and�are�liable�to�result�in�decisions�adversely�affecting�them.�As�regards�the doubts raised by the Kingdom of Spain concerning the Commission’s objective impartiality during the investigation, the Court held that the fact that the investigation had been entrusted to a team largely composed of�staff�members�who�had�been�involved�in�Eurostat’s�earlier�visits�did�not,�as�such,�permit�the�Court�to�conclude�that the Commission had infringed the requirement of impartiality to which it is subject, particularly because those�visits�and�that�investigation�procedure�fell�within�separate�legal�frameworks�and�had�different�purposes.�

Regarding�the�substantive�requirements�that�must�be�met�so�that�the�Council�can�impose�a�fine�on�a�Member�State�under�the�powers�conferred�on�it�by�Article�8(1)�of�Regulation�No�1173/2011,�the�Court�also�confirmed�the�need�for�a�broad�interpretation�of�the�concept�of�‘misrepresent[ation�of]�deficit�and�debt�data’.�In�the�light�of�the�objective of deterrence pursued by the EU legislature, that concept therefore covers all misrepresentations by the Member States concerning data that must be reported to Eurostat under Article 3 of Regulation No 479/2009, irrespective�of�whether,�first,�the�data�at�issue�is�provisional�or�definitive�and,�secondly,�the�misrepresentations�in�that�regard�have�had�the�effect�of�jeopardising�the�economic�and�budgetary�coordination�and�surveillance�carried out by the Council and the Commission. As regards the requirement that the Member State concerned must have acted, at the very least, with serious negligence, the Court moreover found that the assessment as to whether such negligence exists depends on the magnitude of the Member State’s breach of the obligation to exercise due care owed by it when drawing up and checking the data to be reported to Eurostat under Article 3 of Regulation No 479/2009.

Finally,�while�confirming�that�the�principle�that�penal�provisions�may�not�have�retroactive�effect�applies�to�an�administrative�penalty�such�as�a�fine�imposed�under�Article�8(1)�of�Regulation�No�1173/2011,�the�Court�ruled�that�there had been no breach of that principle in the present case. Having rejected the Kingdom of Spain’s argument that�the�fine�had�been�miscalculated,�the�Court�dismissed�the�action�for�annulment�brought�by�it�in�its�entirety.



XV. SOCIAL POLICY

Mention should be made of one judgment in the area of social policy, concerning the right of employees to paid annual leave. Two other judgments are also worthy of note — G4S Secure Solutions (C-157/15) and Bougnaoui and ADDH (C-188/15) — relating to the compatibility with Directive 2000/78 of the prohibition by an employer of the visible wearing of religious signs in the workplace. 112

In the judgment in King (C-214/16, EU:C:2017:914), delivered on 29 November 2017, the Court ruled on the right of employees to paid annual leave, guaranteed by Article 7 of Directive 2003/88, 113�specifically�the�possibility�of�carrying over and accumulating unexercised rights to paid annual leave. In the instant case, the applicant had worked for a company on the basis of a ‘self-employed commission-only contract’ under which annual leave was unpaid. Upon termination of his employment relationship, he sought to recover payment for his annual leave — taken and not paid as well as not taken — for the entire period of his engagement. Hearing the case on appeal, the national court submitted several questions to the Court for a preliminary ruling concerning, in particular, the compatibility with EU law of national legislation which requires the worker to take leave before being able to establish whether he is entitled to paid annual leave and which excludes the carrying over of annual leave beyond the�leave�year�for�which�it�is�granted.�In�that�regard,�the�Court�ruled,�in�the�first�place,�that�Article�7�of�Directive�2003/88�and�Article�47�of�the�Charter�preclude�the�worker�having�to�take�his�leave�first�before�establishing�whether he has the right to be paid in respect of that leave. A worker faced with circumstances liable to give rise to uncertainty during the annual leave period as to the remuneration owed to him would not be able to fully benefit�from�that�leave�as�a�period�of�relaxation�and�leisure,�in�accordance�with�the�very�purpose�of�the�right�to�paid annual leave. Similarly, such circumstances are liable to dissuade the worker from taking his annual leave. Furthermore, as regards the judicial remedies available to the worker, the Court ruled that the Member States must�ensure�compliance�with�the�right�to�an�effective�remedy,�as�enshrined�in�Article�47�of�the�Charter.�In�that�connection,�it�found�that�national�legislation�which�requires�a�worker�to�take�leave�without�pay�in�the�first�place�and then to bring an action to claim payment for it, where the employer is willing to grant only unpaid leave, is incompatible with Article 7 of Directive 2003/88.

In the second place, the Court held that Article 7 of Directive 2003/88 precludes national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave. Indeed, if it were to be accepted, in those circumstances and in the absence of any national provision establishing a limit to the carry-over of leave in accordance with the requirements of EU law, that the worker’s acquired entitlement to paid annual leave could be extinguished, that would amount to validating conduct by which an employer was unjustly enriched to the detriment of the very purpose of the directive, which is that there should be due regard for workers’ health. Finally, the Court pointed out that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unable to take leave due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.

112/ �Those judgments are presented under Section I ‘Fundamental rights’.

113/ �Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).




XVI. CONSUMER PROTECTION

In�the�field�of�consumer�protection,�three�judgments�merit�special�attention.�The�first�relates�to�misleading�advertising and comparative advertising, the second concerns the rights of air passengers and the third addresses the issue of liability for defective products.

In its judgment in Carrefour Hypermarchés (C-562/15, EU:C:2017:95), delivered on 8 February 2017, the Court provided�clarification�on the conditions regarding the permissibility of comparative advertising, as listed in Article 4(a) and (c) of Directive 2006/114, 114 which require comparative advertising not to be misleading and to compare objectively�one�or�more�material,�relevant,�verifiable�and�representative�features�of�the�goods�and�services�compared. The main proceedings involved a dispute between two retail competitors, namely ITM, which is responsible for the strategy and commercial policy of shops in the Intermarché retail chain, and Carrefour, concerning an advertising campaign launched by Carrefour comparing the prices of leading brand products in shops in the Carrefour retail chain and in competitors’ shops, including prices in shops in the Intermarché retail chain.

In�the�first�place,�the�Court�pointed�out�that,�under�Directive�2006/114,�all�comparative�advertising�must�compare�prices objectively and must not be misleading. However, where the advertiser and the competitors belong to retail�chains�which�each�have�a�range�of�shops�of�different�sizes�and�formats,�and�where�the�comparison�does�not relate to shops of the same size or format, the objectivity of the comparison may be distorted if the advertising does�not�mention�that�difference.

In the second place, the Court found that comparative advertising which omits or hides material information which the average consumer requires, according to the context, in order to take an informed transactional decision or which provides that information in an unclear, unintelligible, ambiguous or untimely manner, and which may consequently cause the average consumer to take a transactional decision that he would not otherwise have taken, is misleading. However, according to the Court, advertising such as that at issue in the present case will be misleading only if the consumer is not informed of the fact that the comparison is being made between the prices charged in shops having larger sizes or formats in the retail chain of the advertiser and the prices displayed in shops having smaller sizes or formats belonging to competing retail chains. In that regard, such information not only must be provided clearly, but must also be contained in the advertisement itself.

The judgment in Pešková and Peška (C-315/15, EU:C:2017:342), delivered on 4 May 2017, gave the Court the opportunity to interpret, among other things, the concepts of ‘extraordinary circumstances’ and ‘reasonable measures’ within the meaning of Article 5(3) of Regulation No 261/2004, 115 in the context of a dispute concerning the refusal of�an�air�carrier�to�pay�compensation�to�passengers�whose�flight�had�suffered�a�delay�of�more�than�three�hours�in arrival because of a collision between a bird and their aircraft.

The Court recalled that extraordinary circumstances within the meaning of Regulation No 261/2004 are events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier and are outside that carrier’s actual control. Conversely, the premature failure of certain parts of an aircraft does not

114/ �Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21).

115/ �Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and�assistance�to�passengers�in�the�event�of�denied�boarding�and�of�cancellation�or�long�delay�of�flights,�and�repealing�Regulation� (EEC) No 295/91 (OJ 2004 L 46, p. 1).





constitute an extraordinary circumstance, since such a breakdown remains intrinsically linked to the operating system of the aircraft. However, the Court held that a collision between an aircraft and a bird, as well as any damage caused by that collision, are not intrinsically linked to the operating system of the aircraft, with the result that such a collision is not by its nature or origin inherent in the normal exercise of the activity of the air carrier and is outside its actual control. Consequently, the Court considered that a collision between an aircraft and a bird is an extraordinary circumstance within the meaning of Article 5(3) of Regulation No 261/2004.

As to whether the air carrier took all ‘reasonable measures’ to prevent the collision in question, the Court held that�the�air�carrier�cannot�be�obliged�to�take�measures�which�would�require�it�to�make�intolerable�sacrifices�in�the light of the capacities of its undertaking. In addition, although the air carrier may be required to take certain preventative measures in order to reduce or even prevent the risks of any collisions with birds, it is not responsible for�the�failure�of�other�entities�(such�as�airport�managers�or�the�competent�air�traffic�controllers)�to�fulfil�their�obligations to take the preventative measures for which they are responsible.

In its judgment in W and Others (C-621/15, EU:C:2017:484), delivered on 21 June 2017, the Court ruled on the compatibility with Article 4 of Directive 85/374 116 of national evidentiary rules allowing a court, before which an action has been brought involving the liability of the producer of a vaccine due to an alleged defect in that vaccine, to conclude, notwithstanding the lack of scientific consensus on the matter, that that defect exists and that there is a causal link between it and the occurrence of a disease on the basis of a body of serious, specific and consistent evidence.

The Court considered that Article 4 of Directive 85/374 does not preclude such evidentiary rules. Indeed, such evidentiary rules do not bring about a reversal of the burden of proof which, as provided for in that provision, it is for the victim to discharge, since the onus is on the victim to prove the various elements of his case which, taken together, will provide the court hearing the case with a basis for its conclusion as to the existence of a defect�in�the�vaccine�at�issue�and�a�causal�link�between�that�defect�and�the�damage�suffered.�Moreover,�according�to the Court, excluding any method of proof other than certain proof based on medical research could make it excessively�difficult,�or�even�impossible,�where�medical�research�neither�confirms�nor�rules�out�the�existence�of�a�causal�link,�to�establish�producer�liability,�which�would�undermine�the�effectiveness�of�the�directive�and�its�objectives.

However,�the�Court�made�clear�that�national�courts�must�ensure�that�the�evidence�adduced�is�sufficiently�serious,�specific�and�consistent�to�support�the�conclusion�that,�having�regard�also�to�the�evidence�and�arguments�put�forward by the producer, a defect in the product appears to be the most plausible explanation for the occurrence of the damage. National courts must moreover safeguard their own freedom of assessment in determining whether such proof has been made out to the requisite legal standard, until such time as they consider themselves in�a�position�to�reach�a�definitive�conclusion.

According to the Court, the use by the national legislature or, as the case may be, the supreme judicial body, of a method of proof under which the existence of a causal link between the defect attributed to a vaccine and the damage�suffered�by�the�victim�will�always�be�considered�to�be�established�when�certain�predetermined�causation-related factual evidence is presented, would have the consequence of the burden of proof provided for in Article 4 of�Directive�85/374�and�the�effectiveness�of�the�system�of�liability�established�by�that�directive�being�undermined.�

116/ �Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).




XVII. ENVIRONMENT

1. ENVIRONMENTAL LIABILITY

In the judgment of 1 June 2017 in Folk (C-529/15, EU:C:2017:419),�the�Court�provided�clarification�on�the concept of ‘environmental damage’ within the meaning of Directive 2004/35, 117 as amended by Directive 2009/31. 118 At issue in�the�main�proceedings�was�an�application�submitted�by�the�holder�of�fishing�rights�for�the�river�Mürz�who�had�complained�of�significant�environmental�damage�caused�by�a�hydroelectric�power�station�which�had�disrupted�the�natural�reproduction�of�fish.�

According�to�the�first�instance�court,�since�the�operation�of�the�hydroelectric�power�station�had�been�authorised�under�national�rules,�that�damage�could�not�be�classified�as�environmental�damage�within�the�meaning�of�Directive�2004/35.�The�Court�first�of�all�ruled�that�Article�17�of�the�directive�had�to�be�interpreted�as�applying�ratione temporis to the environmental damage that occurred after its entry into force, even if such damage was caused by the operation of a facility authorised before that date. Secondly, the Court stated that Directive 2004/35, particularly�Article�2(1)(b)�thereof,�which�defines�the�concept�of�‘environmental�damage’,�precludes�a�provision�of�national�law�which�excludes,�generally�and�automatically,�that�damage�which�has�a�significant�adverse�effect�on the ecological, chemical or quantitative status or ecological potential of the water in question be categorised as ‘environmental damage’, due to the mere fact that it results from an activity authorised under national rules and, in consequence, is covered by an authorisation granted under national law.

The Court also made clear that if the competent national authority issued the authorisation without an examination as to whether the conditions laid down in Article 4(7)(a) to (d) of Directive 2000/60 119 have been complied with, EU law does not oblige the national courts to take the place of the competent authority by themselves examining those conditions.

The full and correct transposition of Articles 12 and 13 of Directive 2004/35 requires that the three categories of�persons�listed�in�Article�12(1),�particularly�those�likely�to�be�affected�by�environmental�damage,�may�submit�observations on environmental damage, that they have the option to request that the competent authority take measures under that directive, and, accordingly, that they may initiate a procedure before a court or tribunal or any other competent public body, without the Member States having any discretion in that regard.

117/ �Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56).

118/ �Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006 (OJ 2009 L 140, p. 114).

119/ �Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in�the�field�of�water�policy�(OJ�2000�L�327,�p.�1).




2. EMISSION ALLOWANCE TRADING

In its judgment of 26 July 2017 in ArcelorMittal Atlantique et Lorraine (C-80/16, EU:C:2017:588), the Court ruled on the validity of Decision 2011/278 120 concerning a scheme for greenhouse gas emission allowance trading within the meaning of Directive 2003/87. 121 On this occasion, the Court established the appropriate method to be employed by the Commission in setting benchmarks for the free allocation of emission allowances in the steel sector for the period 2013 to 2020. The referring court had expressed doubts about the validity of Decision 2011/278 in the light of the question whether the benchmarks referred to had been set in conformity with Directive 2003/87. Accordingly, it had asked the Court to determine inter alia whether, in setting those benchmarks, the Commission could decide not to include the totality of emissions related to the use of recycled waste gases in electricity production in the benchmark for hot metal, and to include a factory producing both sintered ore and pellets in the reference installations for determining the benchmark for sintered ore.

The�Court�answered�those�questions�in�the�affirmative�and�therefore�concluded�that�there�was�nothing�that�could�affect�the�validity�of�Decision�2011/278.�Specifically�as�regards�the�determination�of�the�benchmark�for�sintered�ore,�the�Court�first�of�all�pointed�out�that�the�Commission�has�broad�discretion�to�determine�the�benchmarks in individual sectors or subsectors under Article 10a(2) of Directive 2003/87. Therefore, the legality of�a�measure�adopted�in�that�sphere�can�be�affected�only�if�the�measure�is�manifestly�inappropriate.�The�fact�that the Commission included in Decision 2011/278 a factory producing both sintered ore and pellets in the reference installations for determining the benchmark for sintered ore did not vitiate that decision with illegality. In the case of an installation including both a production unit for pellets and a production unit for sintered ore, the production of pellets must be considered to be one of the processes directly or indirectly linked to the process units,�within�the�meaning�of�the�definition�of�sintered�ore�in�Annex�I�to�Decision�2011/278,�since�these�two�production units together allow the manufacture of a unique product which is substitutable for sintered ore.

3. PROTECTED SITES

By interim order delivered on 20 November 2017 in Commission v Poland (C-441/17 R, EU:C:2017:877), the Grand Chamber of the Court ordered the Republic of Poland to cease immediately, except in exceptional cases and where strictly necessary, active forest management operations in Białowieża forest, a site of Community importance and a special protection area for birds. The�application�for�interim�relief�had�been�made�in�an�action�for�failure�to�fulfil�obligations 122 brought by the Commission seeking a declaration that the Republic of Poland had, by means of operations including the felling of trees and the removal of dead or dying trees in order to halt the spread of the

120/ �Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2011 L 130, p. 1).

121/ �Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).

122/ �Case C441/17, Commission v Poland, pending as of 31 December 2017.





spruce bark beetle, infringed its obligations under Directive 92/43 123 on the conservation of natural habitats and of�wild�fauna�and�flora�and�Directive�2009/147�124 on the conservation of wild birds.

The Court granted the application for interim relief and found that all of the relevant requirements had been met in this case. In particular, with regard to the requirement relating to urgency, the Court held that the active forest management operations in the forest at issue were likely to cause irreparable and serious damage to the environment. Indeed, once it has occurred, the damage caused by the felling and removal of trees would be�impossible�to�rectify�subsequently,�should�the�Commission’s�allegations�concerning�Poland’s�failure�to�fulfil�obligations be established. Furthermore, the Court pointed out that the interests to be weighed up in this case are, on the one hand, the preservation of habitats and species from a potential threat resulting from the active forest management operations and, on the other hand, the interest of preventing damage to the natural habitats of the forest resulting from the presence of the spruce bark beetle. However, in the absence of detailed information on the harm likely to be caused in the short term by the spruce bark beetle, it is, in the Court’s view, more urgent to prevent the damage that a continuation of the operations at issue would cause than the occurrence of such harm.

Exceptionally, the Court nevertheless excluded from the interim measures forest management operations that are necessary in order to ensure, directly and immediately, the public safety of persons. Those operations may continue to be undertaken only when they are the sole means of ensuring the public safety of persons in the immediate�vicinity�of�transport�routes�or�other�significant�infrastructure�where�it�is�impossible�to�ensure�such�safety by taking other, less radical measures, such as adequate signposting of the danger or a temporary ban on public access to the immediate vicinity.

Finally, the Court ruled that Article 279 TFEU confers power on it to prescribe the imposition of a periodic penalty payment should its order not be respected by the relevant party. On that basis, it ordered Poland to send the Commission details of all measures that it has adopted in order to comply fully with that decision. The Court will decide, where appropriate, by way of a new order, whether its decision has been infringed and, if an infringement is found, it will order Poland to pay the Commission a penalty payment of at least EUR 100 000 per day.

In the judgment in Vereniging Hoekschewaards Landschap (C-281/16, EU:C:2017:774), delivered on 19 October 2017, the Court ruled on the validity of Implementing Decision 2015/72 125 adopting an eighth update of the list of sites of Community importance for the Atlantic biogeographical region, adopted on the basis of Directive 92/43. 126 By that decision, the Commission, at the request of the Kingdom of the Netherlands, had reduced the size of the Haringvliet site of Community importance, a special area of conservation in that Member State, by excluding the Leenheerenpolder, on the ground that the initial inclusion of the latter in the site was the result of a�scientific�error.�The�Court�pointed�out�that�while�it�is�true�that�Member�States�have�a�certain�margin�of�discretion�when making their proposals, under Article 4(1) of Directive 92/43, for a list of sites eligible for designation as sites of Community importance, they do not, however, have that same margin of discretion when suggesting to the Commission to reduce the size of such a site.

123/ �Council�Directive�92/43/EEC�of�21�May�1992�on�the�conservation�of�natural�habitats�and�of�wild�fauna�and�flora�(OJ�1992�L�206,�p.�7),�as�amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193).

124/ �Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2009 L 20, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193).

125/ �Commission Implementing Decision (EU) 2015/72 of 3 December 2014 adopting an eighth update of the list of sites of Community importance for the Atlantic biogeographical region (OJ 2015 L 18, p. 385).

126/ �Council�Directive�92/43/EEC�of�21�May�1992�on�the�conservation�of�natural�habitats�and�of�wild�fauna�and�flora�(OJ�1992�L�206,�p.�7),�as�amended by Council Directive 2006/105/EC of 20 November 2006 (OJ 2006 L 363, p. 368).




As the inclusion of a site in the list gives rise to the presumption that it is relevant in its entirety from the point of�view�of�the�objective�of�Directive�92/43�of�conserving�natural�habitats�and�wild�fauna�and�flora,�a�proposal�by�a Member State to reduce the size of a site placed on that list requires proof that the areas in question do not have a substantial interest in achieving that objective at national level. Therefore, the Commission may accept and implement the proposal only if it concludes that the protection of those areas is also not necessary from the perspective of the entire European Union.

Consequently,�since�there�was�no�conclusive�scientific�evidence�in�this�case�capable�of�proving�that�an�error�had�vitiated the initial proposal to include Leenheerenpolder in the Haringvliet site, the Court ruled that Implementing Decision 2015/72 was invalid.

4. AARHUS CONVENTION

With�respect�to�the�Aarhus�Convention,�two�judgments�are�worthy�of�note.�The�first�is�the�judgment�in�Saint-Gobain Glass Deutschland (C-60/15 P) concerning access to environmental information 127 while the second deals with access to justice as regards the environment.

In its judgment in Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (C-664/15, EU:C:2017:987), delivered on 20 December 2017, the Court ruled on the standing of an environmental organisation in seeking access to justice based on the Aarhus Convention. 128

In�the�first�place,�the�Court�made�clear�that�Article�9(3)�of�the�Aarhus�Convention,�read�in�conjunction�with�Article�47�of the Charter, provides that a duly constituted environmental organisation operating in accordance with the requirements of national law must be able to contest before a court a decision granting a permit for a project that may be contrary to the obligation to prevent the deterioration of the status of bodies of water as set out in Article 4 of Directive 2000/60. 129 According to the Court, although Article 9(3) of the Aarhus Convention implies that contracting States retain discretion as to the implementation of that provision, it cannot allow those States to�impose�criteria�so�strict�that�it�would�be�effectively�impossible�for�environmental�organisations�to�contest�the�actions or omissions that are the subject of that provision.

In this case, it appears that, under the applicable national procedural law, even if an environmental organisation such as Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation meets the requirements set out in Article�2(5)�of�the�Aarhus�Convention�and�therefore�falls�within�the�definition�of�‘public�concerned’,�it�cannot,�in�principle, be granted the status of party to the procedure in the context of an administrative procedure carried out under the legislation governing water-related matters. The combined provisions of Article 9(3) of that convention, Article 47 of the Charter and Article 14(1) of Directive 2000/60 must be interpreted as precluding national procedural rules that deprive environmental organisations of the right to participate, as a party to the procedure, in a permit procedure that is intended to implement Directive 2000/60 and limit the right to bring proceedings contesting decisions resulting from such a procedure solely to persons who do have that status. It

127/ �That judgment is presented under Section III.3 ‘Access to documents’.

128/ �Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p 1).

129/ �Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in�the�field�of�water�policy�(OJ�2000�L�327,�p.�1).




is for national courts to interpret national procedural law in a way that is consistent with those provisions so as to enable such participation.

Against�that�background,�subject�to�verification�by�the�referring�court�of�the�relevant�matters�of�fact�and�national�law, the Court also ruled that Article 9(3) and (4) of the Aarhus Convention, read in conjunction with Article 47 of the Charter, must be interpreted as precluding the application to an environmental organisation of a national rule that imposes a time limit pursuant to which a person loses the status of party to the procedure and therefore cannot bring an action against the decision resulting from that procedure if it failed to submit objections in good time following the opening of the administrative procedure and, at the very latest, during the oral phase of that procedure.

XVIII. COMMON COMMERCIAL POLICY

In Opinion 2/15 (EU:C:2017:376), delivered by the full Court on 16 May 2017, the Court was called upon to rule, under Article 218(11) TFEU, on the competence of the European Union to conclude alone the Free Trade Agreement it had negotiated with the Republic of Singapore. The agreement is a ‘new generation’ bilateral free trade agreement which�contains,�in�addition�to�the�classical�provisions�on�the�reduction�of�customs�duties�and�of�non-tariff�barriers�in�the�field�of�trade�in�goods�and�services,�provisions�on�a�number�of�other�matters�related�to�trade.�Thus,�the�commitments contained in the envisaged agreement relate to market access, investment protection, intellectual property protection, competition and sustainable development. The agreement also establishes dispute settlement mechanisms�and�a�specific�institutional�framework�intended�to�implement,�in�particular,�the�different�obligations�and procedures concerning the exchange of information, cooperation and mediation which it provides for.

In�the�light�of�the�subject�matter�and�objectives�of�the�draft�free�trade�agreement,�the�Court�first�examined�to�what extent the agreement’s provisions fall within the exclusive competence of the European Union in the area of the common commercial policy, as laid down in Article 3(1)(e) TFEU. Since, under Article 207(1) TFEU, the common commercial policy belongs within the context of the EU’s external action, the Court pointed out that only�the�components�of�the�agreement�that�specifically�relate�to�trade�with�one�or�more�non-member�countries,�in that they are essentially intended to promote, facilitate or govern such trade and have direct and immediate effects�on�it,�fall�within�the�field�of�the�common�commercial�policy.�In�so�far�as�that�was�the�case�for�commitments�relating�to�trade�in�goods�provided�for�in�Chapters�2�to�6,�to�non-tariff�barriers�to�trade�and�investment�in�the�field�of�renewable�energy�generation�provided�for�in�Chapter�7,�to�intellectual�property�protection�provided�for�in Chapter 11, to competition provided for in Chapter 12 and to sustainable development provided for in Chapter 13, the�Court�confirmed�that�those�components�of�the�envisaged�free�trade�agreement�fall�within�the�exclusive�competence of the European Union under Article 3(1)(e) TFEU.

As to the commitments concerning the reduction of barriers to the cross-border supply of services, to establishment and to the temporary presence of natural persons, as provided for in Chapter 8 of the agreement, the Court found that that chapter falls within the common commercial policy and, in consequence, the exclusive competence of the European Union referred to in Article 3(1)(e) TFEU, with the exception of the commitments provided for in the�agreement�concerning�the�supply�of�services�in�the�field�of�transport.�Since�those�commitments�are�excluded�from the common commercial policy by Article 207(5) TFEU, the Court examined the competence of the European Union to approve them in the light of Article 3(2) TFEU, which provides that the EU has exclusive competence for the�conclusion�of�an�international�agreement�where�its�conclusion�may�affect�common�rules�or�alter�their�scope.�That risk exists, according to the Court, where the commitments provided for in an agreement fall within the scope of common rules, without it being necessary for the area covered by the international commitments and




that�covered�by�the�EU�rules�to�coincide�fully.�Inasmuch�as�the�supply�of�the�different�transport�services�referred�to�in�Chapter�8�of�the�agreement�was�capable�of�affecting�or�altering�common�EU�rules�in�the�field�of�maritime,�rail and road transport, the Court concluded that the European Union had exclusive competence to approve those commitments under Article 3(2) TFEU. As regards the provisions of the draft agreement concerning transport by internal waterway, the Court observed that those provisions contained commitments of extremely limited scope�which�could�not,�therefore,�have�an�effect�on�the�nature�of�the�European�Union’s�competence�as�regards�the�commitments�set�out�in�Chapter�8.�In�the�light�of�these�different�considerations,�the�Court�concluded�that�the European Union had exclusive competence in relation to all of those commitments. With reference to Article 3(1)(e) TFEU�and,�as�regards�the�commitments�concerning�services�in�the�field�of�transport,�Article�3(2)�TFEU,�the�Court�also�confirmed�that�the�European�Union�had�exclusive�competence�in�relation�to�the�provisions�of�Chapter�10�of�the agreement, containing commitments concerning public procurement.

So far as concerns investment protection, provided for in Chapter 9, Section A, of the agreement, the Court distinguished�between�direct�investments�and�other�investments.�As�regards�the�first�type�of�investment,�it�recalled that EU acts concerning direct foreign investment fall within the common commercial policy, under Article 207(1) TFEU, without drawing a distinction according to whether the acts concern the admission or the protection of such investments. Since the envisaged commitments relating to direct investments are moreover intended�to�promote,�facilitate�and�govern�trade�and�are�such�as�to�have�direct�and�immediate�effects�on�that�trade,�the�Court�confirmed�that�the�European�Union�has�exclusive�competence,�under�Article�3(1)(e)�TFEU,�to�approve them. So far as concerns the commitments relating to non-direct foreign investments, such as ‘portfolio’ investments�made�without�any�intention�to�influence�the�management�and�control�of�an�undertaking,�which�constitute movements of capital within the meaning of Article 63 TFEU, the Court found, by contrast, that they do not fall within the exclusive competence of the European Union under Article 3(1)(e) TFEU or within one of the situations of exclusive competence referred to in Article 3(2) TFEU. As regards that latter aspect, the Court rejected the�Commission’s�argument�that�Section�A�of�Chapter�9�was�capable�of�affecting�Article�63�TFEU.�According�to�the Court, the ‘common rules’ referred to in Article 3(2) TFEU cannot include a provision of the TFEU, in particular because�the�provisions�of�an�international�agreement�of�the�European�Union�are�not�capable�of�affecting�the�rules of EU primary law or of altering their scope. The Court took the view that the approval of commitments which contribute to the establishment of the free movement of capital and payments on a reciprocal basis may, on�the�other�hand,�be�classified�as�necessary�in�order�to�achieve�fully�such�free�movement,�which�is�one�of�the�objectives referred to in the Treaties within the meaning of Article 216(1) TFEU. In that context, approval falls within the competence relating to the internal market that is shared between the European Union and the Member States pursuant to Article 4(2)(a) TFEU.

In respect of the provisions of the envisaged agreement containing various obligations and procedures concerning exchange�of�information,�notification,�verification,�cooperation�and�mediation�and�creating,�for�that�purpose,�a�specific�institutional�framework,�the�Court�observed�that�those�commitments�are�intended�to�ensure�the�effectiveness�of�the�substantive�provisions�of�the�agreement�by�establishing,�essentially,�an�organisational�structure and certain decision-making powers. Since those provisions are of an ancillary nature, they fall within the same competence as the substantive provisions which they accompany. That approach was also taken in relation to the commitments contained in Chapter 14, entitled ‘Transparency’, which are also of an ancillary nature in relation to the substantive provisions which they accompany.

Finally, as regards the provisions of the envisaged agreement relating to dispute settlement, the Court drew a distinction between the regime applicable to disputes between investors and States and that applicable to disputes�between�the�EU�and�Singapore.�The�Court�found�that�the�first�regime�was�not�purely�ancillary�in�nature�in relation to the substantive rules, since it is liable to remove disputes from the jurisdiction of the courts of the Member States. Consequently, the approval of such a regime necessarily falls within a competence shared between the European Union and the Member States. Concerning the regime for the settlement of disputes between the



European Union and Singapore, the Court recalled, on the other hand, that the competence of the European Union�in�the�field�of�international�relations�and�its�capacity�to�conclude�international�agreements�necessarily�entail the power to submit such agreements, as regards the interpretation and application of their provisions, to the decisions of a court which is created or designated by such agreement or a body which, whilst not formally a court, essentially performs judicial functions, such as the Dispute Settlement Body created within the framework of the WTO Agreement. Since the regime for the settlement of disputes between the European Union and Singapore moreover forms part of the institutional framework for the substantive provisions of the envisaged agreement and is not liable to remove disputes from the jurisdiction of the courts of the Member States or of the European Union, the Court found that the regime falls within the same competence as the substantive provisions which it accompanies.

In the light of all of the foregoing, the Court concluded that the draft free trade agreement with Singapore fell, in part, within the exclusive competence of the European Union and, in part, within a competence that is shared between the European Union and the Member States.

On 25 October 2017, in the judgment in Commission v Council (C-389/15, EU:C:2017:798), the Court, sitting as the Grand Chamber, upheld the action for annulment brought by the Commission against Council Decision 8512/15 of 7 May 2015 authorising the opening of negotiations on a revised Lisbon Agreement 130 on appellations of origin and geographical indications. The Court found that the negotiations on the draft revised agreement fall within the exclusive�competence�that�Article�3(1)�TFEU�confers�on�the�European�Union�in�the�field�of�the�common�commercial�policy referred to in Article 207(1) TFEU.

The�Court�first�recalled�its�settled�case-law�that�international�commitments�concerning�intellectual�property�entered�into�by�the�European�Union�fall�within�the�common�commercial�policy�if�they�display�a�specific�link�with�international trade in that they are essentially intended to promote, facilitate or govern such trade and have direct and�immediate�effects�on�it.�It�considered�that�international�agreements�which�are�concerned�with�safeguarding�and organising the protection of intellectual property rights on the territory of the parties are among those that may fall within that policy, provided that they satisfy the above two conditions.

As regards the objective of the draft revised agreement, the Court made clear that since its main objective is to strengthen the system established by the Lisbon Agreement and, within the Special Union created by that agreement, to extend the protection introduced by the latter to geographical indications, supplementing the protection which the Paris Convention 131�affords�to�the�various�forms�of�industrial�property,�the�draft�revised�agreement must be regarded as falling within the framework of the aim that is pursued by the body of international agreements of which it forms part and, in particular, from the point of view of the European Union, as being intended to facilitate and govern trade between the European Union and the third States party to the Lisbon Agreement.

Concerning�the�effects�of�the�draft�revised�agreement,�the�Court�considered�that�the�provisions�it�contains�will�have�immediate�effects�on�trade�between�the�European�Union�and�the�third�States�concerned,�by�giving�all�the�manufacturers involved in such trade, and any other interested natural or legal person, the necessary tools to secure,�under�homogeneous�substantive�and�procedural�conditions,�definitive�observance�of�the�protection�

130/ �The Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, signed on 31 October 1958, revised in Stockholm on 14 July 1967 and amended on 28 September 1979 (United Nations Treaty Series, Vol. 828, No 13172, p. 205).

131/ �The Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883, last revised in Stockholm on 14 July 1967 and amended on 28 September 1979 (United Nations Treaties Series, Vol. 828, No 11851, p. 305).




which�the�draft�revised�agreement�affords�to�their�industrial�property�rights�if�appellations�of�origin�or�geographical�indications are used abroad in a harmful or unfair manner.

The Court therefore concluded that the Council had been wrong to take the view that the contested decision fell�within�the�approximation�of�laws�in�the�field�of�the�internal�market�(Article�114�TFEU)�and,�accordingly,�within a competence shared between the European Union and its Member States, with the result that it annulled that decision.

XIX. INTERNATIONAL AGREEMENTS

Two opinions and one judgment should be mentioned in relation to international agreements. The two opinions concern, respectively, the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled and the agreement negotiated between Canada and the European Union on the transfer and processing of Passenger Name Record data. 132 The judgment concerns the interpretation of a provision contained in a decision of the EEC-Turkey Association Council. Reference should also be made to the judgment in Case C-687/15, Commission v Council (C-MR-15), which relates to the legal form of acts provided for in Article 218(9) TFEU. 133

On 14 February 2017, the Court, sitting as the Grand Chamber, delivered Opinion 3/15 (EU:C:2017:114) on the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled, 134 which was adopted in 2013 following negotiations conducted within the framework of the World Intellectual Property Organisation. The treaty requires the contracting States inter alia to provide in their national law�that�certain�entities�(that�is,�government�institutions�and�non-profit�organisations�which�provide�services�relating�to education, instructional training, adaptive reading or information access) may, without the authorisation of the copyright holder, reproduce or distribute copies of published works in a format which gives access to the works for persons who are blind, visually impaired or otherwise print disabled. The Court was called upon to decide whether the European Union had competence to conclude such an agreement.

In�the�first�place,�the�Court�considered�that�the�conclusion�of�the�Marrakesh�Treaty�does�not�fall�within�the�common�commercial�policy�defined�in�Article�207�TFEU.�The�treaty�is�not�intended�to�promote,�facilitate�or�govern�international�trade�in�accessible�format�copies;�its�aim�is�rather�to�improve�the�position�of�beneficiary�persons�by facilitating, through various means, their access to published works. Furthermore, the cross-border exchange of accessible format copies envisaged by the Marrakesh Treaty cannot be equated with international trade engaged in by ordinary operators for commercial purposes, since the exchange in question takes place between only government�institutions�or�non-profit�organisations�in�accordance�with�the�conditions�specified�in�the�treaty�and�the�copies�imported�and�exported�are�intended�for�beneficiary�persons�alone.

132/ �That judgment is presented in Section I ‘Fundamental Rights’.

133/ �That judgment is presented in Section III.2 ‘Legal acts of the European Union’.

134/ �The Council authorised the signing of that treaty, on behalf of the European Union, by Council Decision 2014/221/EU of 14 April 2014 (OJ 2014 L 115, p. 1).




In the second place, the Court held that the body of obligations laid down by the Marrakesh Treaty falls within an area that is already covered to a large extent by common EU rules and the conclusion of that treaty may thus affect�those�rules�or�alter�their�scope,�within�the�meaning�of�Article�3(2)�TFEU.�Therefore,�the�conclusion�of�the�Marrakesh Treaty falls within the exclusive competence of the European Union. The Court found that Directive 2001/29 135�permits�Member�States�which�wish�to�do�so�to�introduce�—�for�the�benefit�of�persons�with�a�disability�—an exception or limitation to the rights of reproduction and communication to the public. It follows that the exception or limitation on those rights provided for by the Marrakesh Treaty will have to be implemented within the area harmonised by that directive. The same is true of the import and export arrangements prescribed by the treaty, inasmuch as they are intended to permit the communication to the public or the distribution, in the territory of a contracting State, of accessible format copies published in another contracting State, without the consent of the copyright holders being obtained. The Court pointed out in that regard that, while the Member States have the option under Directive 2001/29 of introducing such an exception or limitation, that option is granted by the EU legislature and is highly circumscribed by various requirements of EU law.

In Opinion 1/15 (EU:C:2017:592) 136 of 26 July 2017, the Grand Chamber of the Court ruled among other things on the appropriate legal basis for the adoption of the Council’s decision on the conclusion of the agreement negotiated between Canada and the European Union on the transfer and processing of Passenger Name Record data. Given that the choice of substantive legal basis for an EU act, including one adopted in order to conclude an international agreement, must rest on objective factors amenable to judicial review, which include the aim and the content of that�measure,�the�Court�first�of�all�found�that�the�envisaged�agreement�has�two�components,�one�concerning�the necessity of ensuring public security and the other concerning the protection of Passenger Name Record data. Since both components are fundamental in nature, the Court held that the measures envisaged for the protection of the personal data of passengers relate to the legal basis provided for in Article 16(2) TFEU, while the measures concerning the transfer of that data to the competent criminal authorities and their processing by those authorities relates to the legal basis provided for in Article 87(2)(a) TFEU. In addition, after determining that the�use�of�both�of�those�legal�bases�does�not�entail�different�adoption�procedures,�the�Court�lastly�confirmed�that the Council’s decision on the conclusion of the envisaged agreement had to be based jointly on Article 16(2) and Article 87(2)(a) TFEU.

On 5 December 2017, in its judgment in Germany v Council (C-600/14, EU:C:2017:935), the Court, sitting as the Grand Chamber, dismissed the action for annulment in part of Council Decision 2014/699, 137 the aim of which was to establish the position to be adopted on behalf of the European Union with respect to a number of amendments to the Convention concerning International Carriage by Rail (COTIF). In support of its action, the Federal Republic of Germany argued in particular that some of the points on which the contested decision established the positions to be adopted on behalf of the European Union do not fall within the scope of the EU’s external�competence,�unless�it�has,�first,�adopted�common�rules�that�are�liable�to�be�affected�by�those�amendments.

In�its�judgment,�the�Court�held�first�of�all�that�the�competence�of�the�European�Union�to�conclude�international�agreements�may�arise�not�only�from�an�express�grant�by�the�Treaties,�but�may�also�flow�by�implication�from�other�provisions of the Treaties and from measures adopted by the EU institutions under those provisions. In particular,

135/ �Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

136/ �That Opinion was also presented under Section I ‘Fundamental rights’.

137/ �Council Decision 2014/699/EU of 24 June 2014 establishing the position to be adopted on behalf of the European Union at the 25th session of the OTIF Revision Committee as regards certain amendments to the Convention concerning International Carriage by Rail (COTIF) and to the Appendices thereto (OJ 2014 L 293, p. 26).





whenever EU law creates for those institutions powers within its internal system for the purpose of attaining a specific�objective,�the�European�Union�has�the�competence�to�undertake�international�commitments�necessary�for�the�attainment�of�that�objective�even�in�the�absence�of�an�express�provision�to�that�effect.�Thus,�the�European�Union may have an external competence that falls outside the situations in which it has an exclusive competence under Article 3(2) TFEU. The Court pointed out that the provisions of the COTIF to which the amendments at issue relate are designed to establish common rules at international level, including with respect to international transport to or from the territory of a Member State, or passing across the territory of one or more Member States, as regards parts of the journey that take place outside EU territory and, as a general rule, also as regards parts of the journey that take place on EU territory. Therefore, the fact that the European Union adopts a position on those amendments must be considered to contribute to the achievement of the objectives of the common transport policy, within the framework of the competence conferred on the EU by Article 91(1) TFEU, which also encompasses an external aspect.

The Court also stated that the external EU competence that falls within the scope of the second situation laid down in Article 216(1) TFEU, corresponding to the scenario in which the conclusion of an agreement is ‘necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’, is�not�subject�to�any�condition�relating�to�the�prior�adoption�of�EU�rules�that�are�likely�to�be�affected�by�the�amendments at issue. Furthermore, it cannot be argued that, in the area of transport, which falls within the scope of the shared competence of the European Union and its Member States, the EU cannot take external action unless�it�has�first�taken�internal�action�by�means�of�adopting�common�rules,�in�areas�in�which�international�agreements have been concluded.

In the judgment in Tekdemir (C-652/15, EU:C:2017:239) of 29 March 2017, the Court was called upon to interpret the standstill clause set out in Article 13 of Decision No 1/80 of the EEC-Turkey Association Council 138 preventing the Member States and the Republic of Turkey from introducing new restrictions on the conditions of access to employment applicable to workers and members of their families legally present in their respective territories. In the present case, a Turkish national born in Germany in June 2014, legally represented by his parents, had applied, in July 2014, for a residence permit to be issued under German law. The child’s mother, also a Turkish national, had entered Germany in 2013 under the cover of a Schengen visa for tourists and had later applied for asylum there. When the child was born, she had authorisation to stay as an asylum applicant. The child’s father, also a Turkish national, held a residence permit valid until October 2016.

On the basis of a national provision introduced after the entry into force of Decision No 1/80 in the Federal Republic of Germany, the competent German authority had rejected the application for a residence permit to be�issued�to�the�child,�taking�the�view,�first,�that�it�was�not�intolerable�to�require�him�to�pursue�the�procedure�for�a visa ex post facto, even if that would inevitably mean that he and his mother would, at least temporarily, be separated from their father and husband, respectively, and, secondly, that it was also not unreasonable to expect the child’s father to continue his family community and matrimonial life with his son and wife in Turkey.

With reference to the interpretation applied in the judgment in Demir, 139 the Court held that the objective of efficient�management�of�migration�flows�may�constitute�an�overriding�reason�in�the�public�interest�capable�of�justifying a national measure, introduced after the entry into force of Decision No 1/80 in the Member State in

138/ �Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, annexed to the Agreement establishing an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of Turkey, on the one hand, and by the Member States of the EEC and the Community, on the other, and concluded, approved and�confirmed�on�behalf�of�the�Community�by�Council�Decision�64/732/EEC�of�23�December�1963�(OJ�1973�C�113,�p.�1).

139/ �Judgment of the Court of 7 November 2013, Demir (C-225/12, EU:C:2013:725).





question, requiring nationals of third countries under the age of 16 to hold a residence permit in order to enter and reside in that Member State. Such a measure is not, however, proportionate to the objective pursued where the procedure for its implementation, as regards child nationals of third countries born in the Member State in question and one of whose parents is a Turkish worker lawfully residing in that Member State, goes beyond what is�necessary�for�attaining�that�objective,�particularly�in�so�far�as�the�application�of�such�a�measure�has�the�effect�of requiring that worker to choose between pursuing paid employment in the Member State in question and having�his�family�life�profoundly�disrupted�or�giving�up�that�employment�with�no�guarantee�of�finding�new�employment upon a return from Turkey.

XX. COMMON FOREIGN AND SECURITY POLICY

As�regards�restrictive�measures�in�the�field�of�the�common�foreign�and�security�policy�(CFSP),�five�judgments�merit special attention. Three concern the freezing of funds of groups or individuals considered to have ties to terrorist acts. The fourth judgment concerns the Court’s jurisdiction to rule on the legality of decisions of the Council applying restrictive measures to a number of Russian undertakings on account of the Russian Federation’s actions in Ukraine. Lastly, reference should be made to the judgment in Safa Nicu Sepahan v Council (C-45/15 P) which concerns compensation in respect of damage caused by a decision to freeze funds. 140

In its judgment in A and Others (C-158/14, EU:C:2017:202), delivered on 14 March 2017, the Court, sitting as the Grand Chamber, was required to rule on the validity of Council Implementing Regulation (EU) No 610/2010 141 maintaining the Liberation Tigers of Tamil Eelam (LTTE) on a list of groups involved in terrorist acts subject to restrictive measures. The�dispute�in�the�main�proceedings�concerned�national�measures�freezing�the�financial�resources�of�various�persons involved in raising funds for the LTTE. Since those national decisions took account of Implementing Regulation No 610/2010, the applicants in the main proceedings had challenged the validity of the implementing regulation on the ground that the activities of the LTTE were not terrorist acts but rather actions by armed forces under�international�humanitarian�law�because�they�fell�within�the�context�of�armed�conflict.�Accordingly,�the�national court enquired in particular whether, in connection with the examination of the validity of Implementing Regulation�No�610/2010,�actions�by�armed�forces�during�periods�of�armed�conflict,�within�the�meaning�of�international humanitarian law, may constitute ‘terrorist acts’ for the purposes of EU law to combat terrorism.

In�the�first�place,�the�Court�confirmed�that�even�though�the�applicants�in�the�main�proceedings�had�not�challenged�Implementing Regulation No 610/2010 and the acts preceding it in the context of an action for annulment, they would in any event have been entitled to challenge the validity of those acts before the referring court. The Court recalled that a request for a preliminary ruling concerning the validity of an act of the European Union may indeed be dismissed in the event that, although the action for annulment of that act would unquestionably have been admissible, the natural or legal person capable of bringing such an action abstained from doing so within the prescribed period and is pleading the unlawfulness of that act in national proceedings in order to encourage the national court to submit a request for a preliminary ruling to the Court concerning the validity of the act, thereby circumventing�the�fact�that�that�act�is�final�as�against�him�once�the�time�limit�for�his�bringing�an�action�has�expired.�

140/ �That judgment is presented under Section III.4 ‘Non-contractual liability of the European Union’.

141/ �Council�Implementing�Regulation�(EU)�No�610/2010�of�12�July�2010�implementing�Article�2(3)�of�Regulation�(EC)�No�2580/2001�on�specific�restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 1285/2009 (OJ 2010 L 178, p. 1).




However, in this instance, an action for annulment brought by the applicants in the main proceedings would not unquestionably have been admissible. First of all, the Court pointed out that those applicants were not themselves included on the list of those whose funds were to be frozen. The inclusion of the LTTE on the list of those whose funds were to be frozen is of general application with regard to persons other than that entity, in that it serves to�impose�on�an�indeterminate�number�of�persons�an�obligation�to�comply�with�specific�restrictive�measures�against that entity. Therefore, it was not obvious that the applicants were ‘individually’ concerned by the acts at issue.�Moreover,�their�situation�had�been�directly�affected,�not�by�the�acts�of�the�European�Union�relating�to�that�inclusion, but by the imposition of sanctions based solely on Netherlands law, which took into account, among other factors, that inclusion. Consequently, it was not established, in the Court’s view, that actions for annulment brought by the applicants against the acts of the European Union including and maintaining the LTTE on the list of those whose funds were to be frozen would unquestionably have been admissible.

In the second place, after recalling that a regulation providing for restrictive measures must be interpreted in the light not only of the decision referred to in Article 215(2) TFEU, but also of the historical context of which the regulation forms part, the Court made clear that Regulation No 2580/2001 142 and Common Position 2001/931, 143 which essentially fall under the common foreign and security policy and intend to implement United Nations Security Council Resolution 1373 (2001), are relevant for the purpose of examining the validity of Implementing Regulation No 610/2010.

Noting that international humanitarian law prohibits terrorist acts, the Court considered that that law pursues different�aims�from�Common�Position�2001/931�and�Regulation�No�2580/2001�but�does�not�prevent�the�adoption�of restrictive measures such as those at issue. Accordingly, the application of those acts of the European Union is�not�dependent�on�classifications�deriving�from�humanitarian�law�and�actions�by�armed�forces�during�periods�of�armed�conflict�may�constitute�‘terrorist�acts’�for�the�purposes�of�those�acts.�The�Court�therefore�concluded�that Implementing Regulation No 610/2010 and the acts preceding it relating to the inclusion of the LTTE on the list of those whose funds were to be frozen were valid.

In two judgments delivered on 26 July 2017, Council v LTTE (C-599/14 P, EU:C:2017:583) and Council v Hamas (C-79/15 P, EU:C:2017:584), the Court, sitting as the Grand Chamber, was required to rule on two judgments of the General Court 144 which had annulled the acts of the Council renewing, between 2010 and 2014, measures for the freezing of funds adopted by that institution against Hamas and the Liberation Tigers of Tamil Eelam (LTTE) on the basis of Common Position 2001/931 145 and Regulation No 2580/2001. 146 In those judgments, the Court confirmed�that�the Council may maintain an entity on the list of entities suspected of having ties to terrorist acts if it concludes that there is an ongoing risk of that entity being involved in the terrorist activities which justified its initial

142/ �Council�Regulation�(EC)�No�2580/2001�of�27�December�2001�on�specific�restrictive�measures�directed�against�certain�persons�and�entities�with a view to combating terrorism (OJ 2001 L 344, p. 70).

143/ �Council�Common�Position�2001/931/CFSP�of�27�December�2001�on�the�application�of�specific�measures�to�combat�terrorism (OJ 2001 L 344, p. 93).

144/ �Judgments of 16 October 2014, LTTE v Council (T-208/11 and T-508/11, EU:T:2014:885), and of 17 December 2014, Hamas v Council (T-400/10, EU:T:2014:1095).

145/ �Cited above, see footnote 142.

146/ �Council�Regulation�(EC)�No�2580/2001�of�27�December�2001�on�specific�restrictive�measures�directed�against�certain�persons�and�entities�with a view to combating terrorism (OJ 2001 L 344, p. 70).







listing. It stated in that regard that although the initial entry on that list must be based on national decisions adopted by competent authorities, that requirement does not apply to the subsequent retention of that listing.

In the instant case, on 27 December 2001 147 and 29 May 2006 148 respectively, the Council entered Hamas and the LTTE on the list provided for in Article 2(3) of Regulation No 2580/2001. Those listings, which are periodically renewed by the Council, were based on a number of decisions of the United Kingdom authorities and one decision of the Indian authorities in the case of the LTTE and on two decisions of the United States authorities and one decision of the United Kingdom authorities in the case of Hamas. Whilst Hamas and the LTTE did not challenge the Council measures by which they were initially listed, they did contest their subsequent retention on the list. The General Court had annulled those measures on the ground that, inter alia, they were based not on facts examined and accepted in decisions adopted by the competent authorities (as required, according to the General Court, by Common Position 931/2001), but on information which the Council had obtained from the press and the internet.

Called upon to rule on the requirements with which the Council must comply when conducting its periodic review of�the�restrictive�measures�in�force,�the�Court�reaffirmed�its�decision�in�Al-Aqsa, 149 according to which the Council may maintain a person or an entity on the list if it concludes that there is an ongoing risk of that person or entity being involved in terrorist activities. The Court stated that, in this case, in order to demonstrate that such a risk still existed in the case of the LTTE and Hamas, the Council was obliged to rely on more recent material than the national�decisions�which�justified�their�initial�listing.�According�to�the�Court,�under�Article�1(4)�of�Common�Position�2001/931, only the initial entry on the list must be based on a national decision by a competent authority. Article 1(6) of the common position lays down no such condition for the subsequent retention of an entity on the list, which may be based on other sources. The Court recalled in that regard that the entities concerned were, in any event, protected by the possibility of disputing all the material relied on by the Council in the context of its periodic review before the EU Courts.

Although, in consequence, the Court set aside the judgment of the General Court as regards Hamas and referred the case back to it, by contrast, it upheld the judgment of the General Court annulling the measures for the freezing of funds directed at the LTTE which were adopted by the Council, despite the error of law committed in that judgment. In view of the LTTE’s military defeat in Sri Lanka in 2009 and the fact that that defeat represented a significant�change�in�circumstances�capable�of�calling�in�question�the�ongoing�nature�of�the�risk�of�its�involvement�in terrorist activities, the Court considered that the Council should have referred to the evidence supporting that assessment in the statements of reasons relating to the contested measures, which it did not do. The Court also ruled that the Council may not base the initial entry of a person or entity on the list on a decision adopted by a competent�authority�of�a�third�State�unless�it�has�verified�carefully�that�the�legislation�of�that�third�State�ensures�observance�of�the�rights�of�the�defence�and�the�right�to�effective�judicial�protection�equivalent�to�that�guaranteed�under EU law. Furthermore, the grounds for that assessment must be given in the statement of reasons.

147/ �Council Decision 2001/927/EC of 27 December 2001 establishing the list provided for in Article 2(3) of Council Regulation (EC) No 2580/2001 on�specific�restrictive�measures�directed�against�certain�persons�and�entities�with�a�view�to�combating�terrorism�(OJ�2001�L�344,�p.�83).

148/ �Council�Decision�2006/379/EC�of�29�May�2006�implementing�Article�2(3)�of�Regulation�(EC)�No�2580/2001�on�specific�restrictive�measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC (OJ 2006 L 144, p. 21).

149/ �Judgment of the Court of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa (C-539/10 P and C-550/10 P, EU:C:2012:711).




Lastly, in the judgment in Rosneft (C-72/15, EU:C:2017:236), delivered on 28 March 2017 by the Grand Chamber, the�Court�confirmed�the�validity of Decision 2014/512 150 and of Council Regulation No 833/2014 151 concerning restrictive measures imposed on certain Russian undertakings with ties to the Russian State in view of the Russian Federation’s actions in Ukraine. One of the undertakings concerned had brought proceedings before the referring court challenging the validity of the restrictive measures adopted by the Council against it as well as national implementing measures.

In�the�first�place,�the�Court�confirmed�that�it�had�jurisdiction�to�give�a�preliminary�ruling�on�the�validity�of�an�act adopted on the basis of provisions relating to the CFSP, provided that the reference for a preliminary ruling relates either to the monitoring of compliance with the procedures and powers of the institutions laid down by the Treaties for the exercise of EU competences, or to reviewing the legality of restrictive measures against the�natural�or�legal�persons�concerned.�As�regards�the�exclusion�of�the�Court’s�jurisdiction�in�the�field�of�the�CFSP,�provided�for�in�the�last�sentence�of�the�second�subparagraph�of�Article�24(1)�TEU�and�the�first�paragraph�of Article 275 TFEU, and the exception to that rule set out in the same provision of the TEU and the second paragraph of Article 275 TFEU, the Court pointed out, in particular, that while it is true that Article 47 of the Charter�cannot�confer�jurisdiction�on�the�Court,�where�the�Treaties�exclude�it,�the�principle�of�effective�judicial�protection�nonetheless�implies�that�the�exclusion�of�the�Court’s�jurisdiction�in�the�field�of�the�CFSP�should�be�interpreted strictly. Since the purpose of the procedure that enables the Court to give preliminary rulings is to ensure that in the interpretation and application of the Treaties the law is observed, it would be contrary to the�objectives�of�that�provision�and�to�the�principle�of�effective�judicial�protection�to�adopt�a�strict�interpretation�of the jurisdiction conferred on the Court by the second paragraph of Article 275 TFEU, to which reference is made in Article 24(1) TEU.

In those circumstances, provided that the Court has, under Article 24(1) TEU and the second paragraph of Article 275 TFEU, jurisdiction ex ratione materiae to rule on the validity of European Union acts, that is, in particular, where such acts relate to restrictive measures against natural or legal persons, it would be inconsistent with the system�of�effective�judicial�protection�established�by�the�Treaties�to�interpret�the�latter�provision�as�excluding�the possibility that the courts and tribunals of Member States may refer questions to the Court on the validity of Council decisions prescribing the adoption of such measures.

In the second place, as regards the validity of the contested acts, the Court found in particular that, having regard to�the�different�functions�of�the�acts�adopted�by�the�Council�under�Article�29�TEU�and�those�adopted�under�Article 215 TFEU, the fact that Decision 2014/512, adopted by the Council on the basis of Article 29 TEU, describes in detail the persons and entities that are to be subject to the restrictive measures cannot, as a general rule, be regarded as encroaching on the procedure, laid down in Article 215 TFEU, for the implementation of that decision. Therefore that fact did not, in the context of the adoption of Regulation No 833/2014 intended to implement that decision, undermine the exercise of the powers that Article 215 TFEU confers on the High Representative of the Union�for�Foreign�Affairs�and�Security�Policy�and�on�the�Commission.�Finally,�the�Court�held�that�the�importance�of�the�objectives�pursued�by�the�contested�acts�was�such�as�to�justify�certain�operators�being�adversely�affected�and that, in this case, the interference resulting from those acts with the freedom to conduct a business and the right to property of the operators concerned was not disproportionate. Moreover, the principles of legal certainty and nulla poena sine lege certa do not, in the Court’s view, preclude a Member State from imposing criminal penalties that are to be applied in the event of an infringement of the provisions of that regulation, even though those�provisions�may�be�subject�to�clarification,�gradually�and�subsequently,�by�the�Court.

150/ �Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 13), as amended by Council Decision 2014/872/CFSP of 4 December 2014 (OJ 2014 L 349, p. 58).

151/ �Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (OJ 2014 L 229, p. 1), as amended by Council Regulation (EU) No 1290/2014 of 4 December 2014 (OJ 2014 L 349, p. 20).




C/ACTIVITY OF THE REGISTRY OF THE COURT OF JUSTICE IN 2017



By Mr Marc-André GAUDISSART, Deputy Registrar

As is apparent from the main texts which govern its organisation and functioning, three fundamental tasks are entrusted to the Registry of the Court of Justice.

Responsible under the Rules of Procedure for the acceptance, transmission and custody of all documents, the Registry�attends,�above�all,�to�the�proper�conduct�of�proceedings�and�to�maintaining�the�files�for�the�cases�brought�before the Court, from the moment when an application initiating proceedings or a request for a preliminary ruling is entered in the register until the decision closing the proceedings before the Court is served on the parties concerned�and�the�case�file�is�archived.��

In�the�course�of�carrying�out�this�first�task,�and�as�an�extension�of�it,�the�Registry�also�maintains�the�necessary�contact,�in�all�the�official�languages�of�the�European�Union,�with�the�representatives�of�the�parties,�with�other�persons and the courts of the Member States which make requests for a preliminary ruling concerning the interpretation to be given to, or the validity of, EU law.

Finally,�the�Registry�is�at�the�service�of�the�Court’s�members,�whom�it�assists�in�all�their�official�functions.�This�assistance takes the form, inter alia, of dealing with the numerous procedural questions that arise throughout a case and of active participation of the members of the Registry at the hearings of the Court and the administrative meetings of its chambers, but also of involvement in the work of various committees, in particular the committee responsible for examining amendments made to the Statute of the Court of Justice and to its Rules of Procedure.

The latter committee had its work cut out over the past year. It was required not only to draft the report which was sent to the European Parliament, the Council and the Commission on 14 December 2017, concerning the possibility of a partial transfer of some requests for a preliminary ruling to the General Court, 1 but also to engage in�deep�reflection�on�the�consequences�of�the�reform�of�the�judicial�structure�of�the�European�Union�for�the�reassignment of jurisdiction between the Court of Justice and the General Court in relation to direct actions and on the impact that the development of the European and national rules and practices on data protection could have�on�the�publication�of�case-law.�The�reflection�process�was,�however,�still�ongoing�at�the�time�of�writing.��

The following paragraphs will thus focus on the actual judicial activity and on the main tendencies resulting from the�statistical�tables�which�show�that�2017�was�a�year�of�unflagging�activity,�both�in�terms�of�the�number�of�cases�brought and the number closed.

New cases

In 2017, 739 new cases were brought before the Court of Justice. Leaving aside 1979 — which was an exceptional year�in�that�1�324�new�cases�were�brought,�of�which�a�thousand�were�connected�actions�in�staff�cases�—�2017�saw the highest number of cases brought before the Court since its creation, the previous record having been set in 2015 with 713 new cases. That increase is essentially the result of the rise in the number of requests for a

1/ �The�text�of�that�report�is�available,�in�all�the�official�languages�of�the�European�Union,�on�the�Court’s�website�(https://curia.europa.eu, under Court of Justice — Procedure).



preliminary ruling made to the Court, which totalled 533 in 2017 and represented an increase of 13% on the previous year, during which the Court received 470 requests for a preliminary ruling.

Although it is true that that new record can be explained in part by the introduction of 40 similar cases originating in Germany, concerning the interpretation of Regulation (EC) No 261/2004 on compensation to air passengers in�the�event�of�denied�boarding�and�of�cancellation�or�long�delay�of�a�flight,�2 it does, however, also testify to the confidence�which�the�courts�of�the�Member�States�place�in�the�Court�of�Justice.�The�requests�for�a�preliminary�ruling lodged in 2017 came from practically all of the Member States and national courts — including constitutional courts — within them, and concerned areas of EU law as varied as transport, tax, consumer protection, social policy and the environment, not forgetting, of course, the questions falling under Title V of the Treaty on the Functioning of the European Union related to the migrant crisis and the measures adopted in that respect by the national authorities.

It is in those areas, in particular, that the Court has seen an increase in the number of requests for a preliminary ruling from Germany, Austria and the Netherlands, but also in the number received from countries which joined the Union more recently, such as Hungary, Lithuania and Estonia (with, respectively, 22, 10 and 7 requests for a preliminary ruling lodged in 2017).

Since the Court adjudicated in 2015 and 2016 on numerous important questions related to the sensitive area of mortgages, the number of requests for a preliminary ruling made by the Spanish courts, confronted directly with this�problem,�fell�by�half�in�2017.�The�same�finding�can�be�made�as�regards�requests�received�from�the�United�Kingdom (which dropped from 23 requests in 2016 to 11 requests in 2017), whereas the Court has witnessed the reverse trend in respect of the number of requests made by Irish courts, which doubled from 6 in 2016 to 12 in 2017, and from Finland, from which the number of requests received increased from 7 to 13 over the same period.

The�reader�will�find,�in�the�tables�set�out�below,�a�detailed�overview�of�the�requests�for�a�preliminary�ruling�made�over the past year, broken down by Member State and by court.

In addition to the overwhelming proportion of cases concerning requests for a preliminary ruling, which accounted for almost three quarters of the new cases brought in 2017, there was also an increase in the number of actions for failure to act (up from 31 in 2016 to 41 in 2017) and a decrease in the number of appeals, since the number of appeals, all types of appeal combined, fell from 175 cases to 147 cases over the same period. It would, however, be�premature�to�draw,�at�this�stage,�any�definite�conclusions�as�regards�those�developments�in�so�far�as�the�number of actions for failure to act was at an all-time low in 2016, whereas the number of appeals brought before the Court depends on various parameters related, inter alia, to the number of judgments delivered by the General Court and on the parties’ assessment of the likelihood of success of an appeal. The decrease in the number of appeals�observed�in�2016�and�2017�may�be�an�indication�of�the�beneficial�effects�of�the�reform�of�the�judicial�structure referred to above, combined with the impact of the measures adopted by the Court quickly to dismiss manifestly inadmissible appeals or those which are wholly unfounded; clearly it will be necessary to wait a few more years to see if those trends continue.

Finally, it is worth noting that the Court received a request for an Opinion, in 2017, made by the Kingdom of Belgium pursuant to Article 218(11) of the Treaty on the Functioning of the European Union, concerning the compatibility with the Treaties of the Comprehensive Economic and Trade Agreement (‘CETA’) between Canada

2/ �Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and�assistance�to�passengers�in�the�event�of�denied�boarding�and�of�cancellation�or�long�delay�of�flights,�and�repealing�Regulation�(EEC)�No 295/91 (OJ 2004 L 46 of 17 February 2004, p. 1).



and the European Union and its Member States, signed at Brussels on 30 October 2016. The Court was called on to adjudicate, in particular, on the compatibility of the dispute settlement mechanism provided for in that agreement in the area of investments.

Completed cases

Although the number of new cases in 2017 was on the rise, the number of cases closed remained at roughly the same level as in 2016. Over the past year, the Court closed 699 cases compared with 704 in 2016. Leaving aside the 40 or so German cases referred to above — which concerned the same subject and constituted, in reality, one�and�the�same�case,�which�led�to�their�joining�—�those�figures�thus�show�that�the�number�of�cases�brought�and the number of cases closed in 2017 were in balance.

As in 2016, the lion’s share of the cases closed by the Court consisted of requests for a preliminary ruling and appeals, which together accounted for over 90% of the cases completed in 2017. That proportion can be explained, rather logically, by the similar percentage of cases which those two types of action accounted for in the cases brought before the Court.

What will be more striking for the reader, however, is the greater number of cases decided by judgment. While the Court delivered 412 judgments in 2016, it delivered 466 in 2017, namely 13% more. That increase can be explained, in part, by factors of a temporary nature, in that the Court was required to rule on a number of questions of principle over the course of 2017 (see, in that regard, the developments in the case-law set out in the second part of this report), but also by the increased complexity and technical nature of the cases brought before the Court justifying an in-depth assessment of questions referred to the Court and, on a regular basis, recourse to an Advocate General’s Opinion, including in certain cases which were referred to a chamber comprising three judges. In 2017, over 67% of the total number of judgments delivered were preceded by an Opinion.

The logical consequence of the increase in the number of cases decided by judgment is the decrease in the number of cases decided by order and the correlating increase in the average duration of proceedings. However, that increase remains minimal in respect of cases concerning requests for a preliminary ruling, which account for the lion’s share of the Court’s workload. While in 2016 the average duration of such proceedings was at a historic low of 15 months, the duration of such proceedings in 2017 averaged 15.7 months. In so far as concerns appeals, the increase was more apparent since the average duration of proceedings was 17.1 months in 2017, compared with 12.9 months in 2016, but that development can be explained largely by the closure of a series of complex cases in the area of competition and Sate aid, including a very large cartel case on the Belgian, German, French,�Italian,�Netherlands�and�Austrian�markets�for�bathroom�fittings�and�fixtures.�

Another notable characteristic of 2017 was the relatively high number of requests for application of the accelerated procedure or the urgency procedure in the areas of freedom, security and justice. While there were 21 and 12�such�applications,�respectively,�in�2016,�those�numbers�increased�to�31�and�15�in�2017,�which�reflects�the�importance which the parties or the national courts place in the swift resolution of their disputes. The reasons given by those courts or the circumstances on which they relied in support of such requests appear, however, to have been less persuasive than in 2016, since only two cases were dealt with by the Court under the accelerated procedure in 2017 and only four under the urgency procedure (compared with three and eight, respectively, in 2016). Nevertheless, the rejection of applications for application of the accelerated or urgency procedures was compensated for by a quicker processing of a number of them, which were dealt with as a priority.

Finally, a special mention must be made of three Opinions delivered by the Court in 2017 pursuant to Article 218(11) of the Treaty on the Functioning of the European Union. Those Opinions provided the Court with the opportunity further to clarify the scope of the EU’s powers in the area of external relations, and the scope of



several important agreements for the Union, in particular Opinion 2/15, concerning the Free Trade Agreement between the European Union and the Republic of Singapore, delivered by the Full Court on 16 May 2017.

Cases pending

On 31 December 2017, 912 cases (825 after joining) were pending before the Court, which was slightly higher than the number of cases pending at the end of 2016 (872 cases).

D/ STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE COURT OF JUSTICE

I. General Activity of the Court of Justice — New cases, completed cases, cases pending (2013–17) � �101

II. New cases — Nature of proceedings (2013–17) � �102

III. New cases — Subject matter of the action (2017) � �103

IV. New�cases�—�Actions�for�failure�of�a�Member�State�to�fulfil�its�obligations�(2013–17)� � �104

V. Completed cases — Nature of proceedings (2013–17) � �105

VI. Completed cases — Judgments, orders, opinions (2017) � �106

VII. Completed cases — Bench hearing action (2013–17) � �107

VIII. Cases completed by judgments, by opinions or by orders involving a judicial determination (2013–17) � �108

IX. Cases completed by judgments, by opinions or by orders involving a judicial determination — Subject matter of the action (2013–17) � �109

X. Cases completed by judgments, by opinions or by orders involving a judicial determination — Subject matter of the action (2017) � �111

XI. Completed�cases�—�Judgments�concerning�failure�of�a�Member�State�to�fulfil�its�obligations:� outcome (2013–17) � �113

XII. Completed cases — Duration of proceedings in months (2013–17) � �114

XIII. Cases pending as at 31 December — Nature of proceedings (2013–17) � �115

XIV. Cases pending as at 31 December — Bench hearing action (2013–17) � �116

XV. Miscellaneous — Expedited procedures (2013–17) � �117

XVI. Miscellaneous — Urgent preliminary ruling procedure (2013–17) � �117

XVII. Miscellaneous — Proceedings for interim measures (2017) � �118

XVIII. General trend in the work of the Court (1952–2017) — New cases and judgments � �119

XIX. General trend in the work of the Court (1952–2017) — New references for a preliminary ruling by Member State per year � �121

XX. General trend in the work of the Court (1952–2017) — New references for a preliminary ruling by Member State and by court or tribunal � �123

XXI. General trend in the work of the Court (1952–2017) — Actions�for�failure�to�fulfil�obligations�brought�against the Member States � �126

XXII. Activity of the Registry of the Court of Justice (2015–17) � �127

D/STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE COURT OF JUSTICE




100

200

300

400

500

600

700

800

900

1 000

2013 2014 2015 2016 2017

New cases Completed cases Cases pending

I. GENERAL ACTIVITY OF THE COURT OF JUSTICE — NEW�CASES,�COMPLETED�CASES,�CASES�PENDING�(2013–17) 1

2013 2014 2015 2016 2017New cases 699 622 713 692 739

Completed cases 701 719 616 704 699

Cases pending 884 787 884 872 912

⁄ 1 The�figures�given�(gross�figures)�represent�the�total�number�of�cases,�without�account�being�taken�of�the�joinder�of�cases�on�the�ground�of similarity (one case number = one case).



72.12%

6.22%

19.08%

0.81%0.14%

1.62%

References for a preliminary ruling

Direct actions

Appeals

Appeals concerning interimmeasures or interventions

Requests for an opinion

Special forms of procedure

II. NEW CASES — NATURE�OF�PROCEEDINGS�(2013–17) 1

2017

2013 2014 2015 2016 2017References for a preliminary ruling 450 428 436 470 533

Direct actions 72 74 48 35 46

Appeals 161 111 206 168 141

Appeals concerning interim measures or interventions

5 9 7 6

Requests for an opinion 2 1 3 1

Special forms of procedure 2 9 8 11 12 12

Total 699 622 713 692 739Applications for interim measures 1 3 2 3 3


⁄ 2 The�following�are�considered�to�be�‘special�forms�of�procedure’:�legal�aid;�taxation�of�costs;�rectification;�application�to�set�aside�a�judgment delivered by default; third-party proceedings; interpretation; revision; examination of a proposal by the First Advocate General to review a decision of the General Court; attachment procedure; cases concerning immunity.



III. NEW CASES — SUBJECT�MATTER�OF�THE�ACTION�(2017) 1

Dir

ect a

ctio

ns

Refe

renc

es fo

r

a pr

elim

inar

y ru

ling

App

eals

App

eals

co

ncer

ning

in

teri

m

mea

sure

s or

in

terv

enti

ons

Requ

ests

for

an

opin

ion

Tota

l

Spec

ial f

orm

s of

pr

oced

ure

Access to documents 1 1Accession of new States 1 1Agriculture 8 6 14Approximation of laws 2 39 1 42Arbitration clause 5 5Area of freedom, security and justice 5 90 3 98Citizenship of the Union 1 7 8Commercial policy 2 6 8Common�fisheries�policy 1 1Common foreign and security policy 1 5 6Company law 1 1Competition 2 5 7Consumer protection 1 34 35Customs�union�and�Common�Customs�Tariff 12 2 14Economic and monetary policy 2 5 7Economic, social and territorial cohesion 1 1 2Education, vocational training, youth and sport 2Energy 2 2Environment 11 28 1 40External action by the European Union 2 1 3Financial�provisions�(budget,�financial�framework, own resources, combating fraud and so forth) 3 2 1 6

Free movement of capital 2 10 12Free movement of goods 6 6Freedom of establishment 1 7 8Freedom of movement for persons 3 13 16Freedom to provide services 2 16 18Industrial policy 2 5 7Intellectual and industrial property 19 54 73Law governing the institutions 2 20 2 1 25 1Principles of EU law 10 2 12Public health 1 1Public procurement 1 21 1 23Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation) 1 1 2

Research and technological development and space 3 3Social policy 43 43Social security for migrant workers 7 7State aid 2 10 8 1 21Taxation 2 53 55Transport 5 78 83

EC Treaty/TFEU 46 533 131 5 1 716 3Procedure 3 3 9Staff�Regulations 7 1 8

Others 10 1 11 9

OVERALL TOTAL 46 533 141 6 1 727 12




0

5

10

15

20

25

30

BE BG CZ DK DE EE IE EL ES FR HR IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

2013 2014 2015 2016 2017

IV. NEW CASES — ACTIONS FOR FAILURE OF A MEMBER STATE TO FULFIL ITS OBLIGATIONS (2013–17) 1

2013 2014 2015 2016 2017Belgium 3 6 1 3Bulgaria 3 2 1 2Czech Republic 1 2 2 2Denmark 2 1Germany 4 2 4 7 2Estonia 3 1Ireland 3 1 3Greece 4 7 4 7 2Spain 1 2 3 1 4France 2 3 1 2Croatia 2Italy 5 3 1 3Cyprus 1 1Latvia 1LithuaniaLuxembourg 1 2 2 3Hungary 1 1 1 3Malta 1 1Netherlands 1 1 1 1Austria 1 2 2 1Poland 8 4 2 4 3Portugal 2 5 4 3Romania 2 3 1 1Slovenia 3 1 1 1 2Slovakia 2 1 1Finland 3 2 1Sweden 1 1United Kingdom 3 3 2 1 2

Total 54 57 37 31 41




63.95%

5.29%

27.75%

0.57%0.43%

2.00%

References for a preliminary ruling

Direct actions

Appeals

Appeals concerning interimmeasures or interventions



2017

V. COMPLETED CASES — NATURE�OF�PROCEEDINGS�(2013–17) 1



Appeals 155 157 127 182 194


5 1 7 7 4

Requests for an opinion 1 2 1 3

Special forms of procedure 17 7 7 13 14

Total 701 719 616 704 699




71.25%

17.13%

0.61%

10.55%

0.46%

Judgments

Orders involving a judicialdetermination

Interlocutory orders

Other orders


VI. COMPLETED CASES — JUDGMENTS,�ORDERS,�OPINIONS�(2017) 1

Judg

men

ts

Ord

ers

invo

lvin

g

a ju

dici

al

dete

rmin

atio

n 2

Inte

rloc

utor

y or

ders

3

Oth

er o

rder

s 4

Requ

ests

fo

r an

opi

nion

Tota

l

References for a preliminary ruling 325 42 58 425

Direct actions 27 1 9 37

Appeals 114 57 171


3 1 4

Requests for an opinion 3 3

Special forms of procedure 13 1 14

Total 466 112 4 69 3 654

⁄ 1 The�figures�given�(net�figures)�represent�the�number�of�cases�after�joinder�on�the�ground�of�similarity�(a�set�of�joined�cases�=�one�case).

⁄ 2 Orders terminating proceedings other than those removing a case from the register, declaring that there is no need to give a decision or referring a case to the General Court.

⁄ 3 Orders made following an application on the basis of Articles 278 TFEU and 279 TFEU (former Articles 242 EC and 243 EC), Article 280 TFEU (former Article 244 EC) or the corresponding provisions of the EAEC Treaty, or following an appeal against an order concerning interim measures or intervention.

⁄ 4 Orders terminating the case by removal from the register, declaration that there is no need to give a decision or referral to the General Court.



0.16%

7.32%

51.27%

40.76%

0.48%

Full Court

Grand Chamber

Chambers (five judges)

Chambers (three judges)

Vice-President

VII. COMPLETED CASES — BENCH�HEARING�ACTION�(2013–17) 1

2017

2013 2014 2015 2016 2017

Judg

men

ts/

opin

ions

Ord

ers

2

Tota

l

Judg

men

ts/

opin

ions

Ord

ers

2

Tota

l

Judg

men

ts/

opin

ions

Ord

ers

2

Tota

l

Judg

men

ts/

opin

ions

Ord

ers

2

Tota

l

Judg

men

ts/

opin

ions

Ord

ers

2

Tota

l

Full Court 1 1 1 1

Grand Chamber 52 52 51 3 54 47 47 54 54 46 46

Chambers (five�judges) 348 18 366 320 20 340 298 20 318 280 20 300 312 10 322

Chambers (three judges) 91 106 197 110 118 228 93 89 182 120 162 282 151 105 256

Vice-President 5 5 1 1 7 7 5 5 3 3

Total 491 129 620 482 142 624 438 116 554 454 187 641 510 118 628





0

100

200

300

400

500

600

2013 2014 2015 2016 2017

Judgments/opinions Orders

VIII. CASES COMPLETED BY JUDGMENTS, BY OPINIONS OR BY ORDERS INVOLVING�A�JUDICIAL�DETERMINATION�(2013–17) 1 2

2013 2014 2015 2016 2017Judgments/opinions 491 482 438 454 510

Orders 129 142 116 187 118

Total 620 624 554 641 628





IX. CASES COMPLETED BY JUDGMENTS, BY OPINIONS OR BY ORDERS INVOLVING A JUDICIAL DETERMINATION — SUBJECT�MATTER�OF�THE�ACTION�(2013–17) 1

2013 2014 2015 2016 2017

Access to documents 6 4 3 4 9

Accession of new States 1

Agriculture 33 29 20 13 22

Approximation of laws 24 25 24 16 29

Area of freedom, security and justice 46 51 49 51 61

Citizenship of the Union 12 9 4 8 5

Commercial policy 6 7 4 14 14

Common�fisheries�policy 5 3 1 2

Common foreign and security policy 12 3 6 11 10

Company law 4 3 1 1 4

Competition 42 28 23 30 53

Consumer protection 19 20 29 33 20

Customs�union�and�Common�Customs�Tariff 11 21 20 27 19

Economic and monetary policy 1 3 10 2

Economic, social and territorial cohesion 6 8 4 2

Education, vocational training, youth and sport 1 1 2

Employment 1

Energy 1 3 2 2

Environment 35 30 27 53 27

External action by the European Union 4 6 1 5 1

Financial�provisions�(budget,�financial�framework,� own resources, combating fraud and so forth)

2 5 1 2 7

Free movement of capital 8 6 8 7 1

Free movement of goods 1 10 9 5 2

Freedom of establishment 13 9 17 27 10

Freedom of movement for persons 15 20 13 12 17

Freedom to provide services 16 11 17 14 13


>>>



Industrial policy 15 3 9 10 8

Intellectual and industrial property 43 69 51 80 60

Judicial cooperation in civil matters 1

Law governing the institutions 31 18 27 20 27

Principles of EU law 17 23 12 13 14

Public health 2 3 5 4 5

Public procurement 12 13 14 31 15

Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation)

5 1 1 7

Research and technological development and space 1 1 3 2

Social policy 27 51 30 23 26

Social security for migrant workers 12 6 14 5 6

State aid 34 41 26 26 33

Taxation 74 52 55 41 62

Trans-European networks 1

Transport 17 18 9 20 17

EC Treaty/TFEU 601 617 544 626 614Euratom Treaty 1

Privileges and immunities 2 1

Procedure 14 6 4 14 13

Staff�Regulations 5 1 3 1

Others 19 7 9 15 14OVERALL TOTAL 620 624 554 641 628




X. CASES COMPLETED BY JUDGMENTS, BY OPINIONS OR BY ORDERS INVOLVING A JUDICIAL DETERMINATION — SUBJECT�MATTER�OF�THE�ACTION (2017) 1

Judgments/opinions

Orders 2 Total

Access to documents 5 4 9

Agriculture 20 2 22

Approximation of laws 23 6 29

Area of freedom, security and justice 59 2 61

Citizenship of the Union 4 1 5

Commercial policy 14 14

Common�fisheries�policy 2 2

Common foreign and security policy 8 2 10

Company law 4 4

Competition 52 1 53

Consumer protection 16 4 20

Customs�union�and�Common�Customs�Tariff 18 1 19

Economic and monetary policy 1 1 2

Education, vocational training, youth and sport 2 2

Energy 2 2

Environment 26 1 27

External action by the European Union 1 1

Financial�provisions�(budget,�financial�framework,� own resources, combating fraud and so forth)

5 2 7

Free movement of capital 1 1

Free movement of goods 2 2

Freedom of establishment 7 3 10

Freedom of movement for persons 14 3 17

Freedom to provide services 12 1 13

Industrial policy 8 8

Intellectual and industrial property 38 22 60

Law governing the institutions 12 15 27

Principles of EU law 9 5 14

Public health 5 5

Public procurement 12 3 15



>>>




5 2 7

Research and technological development and space 2 2

Social policy 23 3 26

Social security for migrant workers 5 1 6

State aid 24 9 33

Taxation 57 5 62

Transport 16 1 17

EC Treaty/TFEU 510 104 614Procedure 13 13

Staff�Regulations 1 1

Others 14 14OVERALL TOTAL 510 118 628





0

2

4

6

8

10

12

14

16

18

20

BE BG CZ DK DE EE IE EL ES FR HR IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

2013 2014 2015 2016 2017

XI. COMPLETED CASES — JUDGMENTS CONCERNING FAILURE OF A MEMBER STATE TO FULFIL ITS�OBLIGATIONS:�OUTCOME�(2013–17) 1

2013 2014 2015 2016 2017Infringement

declared Dismissed Infringement declared Dismissed Infringement

declared Dismissed Infringement declared Dismissed Infringement

declared Dismissed

Belgium 2 1 4 2 1 1Bulgaria 1 1 2 1 1Czech Republic 2 2 1Denmark 1 1 1 1Germany 2 3 1 3 1 4EstoniaIreland 3 1 1 1Greece 2 1 4 3 4 5Spain 6 6 3 2France 5 3 1 4 1CroatiaItaly 7 1 6 2 1Cyprus 1 1Latvia 1Lithuania 1Luxembourg 1 1 2 1 1Hungary 1 2 1 1Malta 1Netherlands 2 2 1 1 1Austria 1 1Poland 4 2 4 3 1 2Portugal 1 3 6 2Romania 1Slovenia 1 1 1Slovakia 1 2Finland 2Sweden 1 1 1 1United Kingdom 1 4 1 1 1 1 1

Total 40 23 41 3 26 5 27 4 20




0

5

10

15

20

25

30

2013 2014 2015 2016 2017

References for a preliminary ruling Direct actions Appeals

XII. COMPLETED CASES — DURATION�OF�PROCEEDINGS�IN�MONTHS�(2013–17) 1(JUDGMENTS AND ORDERS INVOLVING A JUDICIAL DETERMINATION)

2013 2014 2015 2016 2017

References for a preliminary ruling 16.3 15 15.3 15 15.7

Urgent preliminary ruling procedure 2.2 2.2 1.9 2.7 2.9

Direct actions 24.3 20 17.6 19.3 20.3

Appeals 16.6 14.5 14 12.9 17.1

⁄ 1 The following types of cases are excluded from the calculation of the duration of proceedings: cases involving an interlocutory judgment or�a�measure�of�inquiry;�opinions;�special�forms�of�procedure�(namely�legal�aid,�taxation�of�costs,�rectification,�application�to�set�aside�a judgment delivered by default, third-party proceedings, interpretation, revision, examination of a proposal by the First Advocate General to review a decision of the General Court, attachment procedure and cases concerning immunity); cases terminated by an order removing the case from the register, declaring that there is no need to give a decision or referring the case to the General Court; proceedings for interim measures and appeals concerning interim measures and interventions.



0

100

200

300

400

500

600

700

2013 2014 2015 2016 2017

References for a preliminary ruling Direct actions

Appeals Special forms of procedure


XIII. CASES PENDING AS AT 31 DECEMBER — NATURE�OF�PROCEEDINGS�(2013–17) 1



Appeals 211 164 245 231 180


Requests for an opinion 2 1 3 3 1

Total 884 787 884 872 912




8.33%

21.27%

8.22%

0.43%

61.73%

Grand Chamber



Vice-President

Not assigned

XIV. CASES PENDING AS AT 31 DECEMBER — BENCH�HEARING�ACTION�(2013–17) 1

2013 2014 2015 2016 2017Full Court 1

Grand Chamber 37 33 38 40 76

Chambers�(five�judges) 190 176 203 215 194

Chambers (three judges) 51 44 54 75 75

Vice-President 1 2 2 4

Not assigned 605 534 587 539 563

Total 884 787 884 872 912


2017



XV. MISCELLANEOUS — EXPEDITED PROCEDURES (2013–17) 1

2013 2014 2015 2016 2017

Gra

nted

Not

gr

ante

d

Gra

nted

Not

gr

ante

d

Gra

nted

Not

gr

ante

d

Gra

nted

Not

gr

ante

d

Gra

nted

Not

gr

ante

d

Direct actions 1 1

References for a preliminary ruling 13 2 13 1 20 3 16 3 30

Appeals 3 1

Total 13 2 14 1 23 4 16 4 30

⁄ 1 Cases in which a decision or order granting or refusing a request for the expedited procedure to be applied was made during the year concerned.

XVI. MISCELLANEOUS — URGENT PRELIMINARY RULING PROCEDURE (2013–17) 1

2013 2014 2015 2016 2017

Gra

nted

Not

gra

nted

Gra

nted

Not

gra

nted

Gra

nted

Not

gra

nted

Gra

nted

Not

gra

nted

Gra

nted

Not

gra

nted

Area of freedom, security and justice 2 3 4 1 5 5 9 4 4 11

Approximation of laws 1

Total 2 3 4 2 5 5 9 4 4 11

⁄ 1 Cases in which the decision was taken, during the year concerned, to grant or refuse a request for the urgent procedure to be applied.



XVII. MISCELLANEOUS — PROCEEDINGS�FOR�INTERIM�MEASURES�(2017) 1

New

app

licat

ions

for

inte

rim

mea

sure

s

App

eals

con

cern

ing

inte

rim

m

easu

res

or in

terv

enti

ons Outcome

Not

gra

nted

Gra

nted

Rem

oved

from

the

regi

ster

or

no n

eed

to g

ive

a de

cisi

on

Access to documents 2

Environment 1 1

Industrial policy 1

Law governing the institutions 2 1

Public procurement 1 1


1

Staff�Regulations 1

State aid 1 1

OVERALL TOTAL 3 6 3 1 1




XVIII. GENERAL TREND IN THE WORK OF THE COURT (1952–2017) — NEW CASES AND JUDGMENTS

Year

New cases 1

Judg

men

ts/

opin

ions

2

Refe

renc

es

for

a pr

elim

inar

y ru

ling

Dir

ect

acti

ons

App

eals

App

eals

co

ncer

ning

in

teri

m

mea

sure

s or

in

terv

enti

ons

Requ

ests

for

an o

pini

on

Tota

l

App

licat

ions

fo

r in

teri

m

mea

sure

s

1953 4 4

1954 10 10 2

1955 9 9 2 4

1956 11 11 2 6

1957 19 19 2 4

1958 43 43 10

1959 46 1 47 5 13

1960 22 1 23 2 18

1961 1 24 1 26 1 11

1962 5 30 35 2 20

1963 6 99 105 7 17

1964 6 49 55 4 31

1965 7 55 62 4 52

1966 1 30 31 2 24

1967 23 14 37 24

1968 9 24 33 1 27

1969 17 60 77 2 30

1970 32 47 79 64

1971 37 59 96 1 60

1972 40 42 82 2 61

1973 61 131 192 6 80

1974 39 63 102 8 63

1975 69 61 1 131 5 78

1976 75 51 1 127 6 88

1977 84 74 158 6 100

1978 123 146 1 270 7 97

1979 106 1 218 1 324 6 138

1980 99 180 279 14 132

1981 108 214 322 17 128

1982 129 217 346 16 185

1983 98 199 297 11 151

1984 129 183 312 17 165

1985 139 294 433 23 211

1986 91 238 329 23 174

>>>⁄ 1 Gross�figures;�special�forms�of�procedure�are�not�included.

⁄ 2 Net�figures.



Year

New cases 1

Judg

men

ts/

opin

ions

2

Refe

renc

es

for

a pr

elim

inar

y ru

ling

Dir

ect

acti

ons

App

eals

App

eals

co

ncer

ning

in

teri

m

mea

sure

s or

in

terv

enti

ons

Requ

ests

for

an o

pini

on

Tota

l

App

licat

ions

fo

r in

teri

m

mea

sure

s

1987 144 251 395 21 208

1988 179 193 372 17 238

1989 139 244 383 19 188

1990 141 221 15 1 378 12 193

1991 186 140 13 1 2 342 9 204

1992 162 251 24 1 2 440 5 210

1993 204 265 17 486 13 203

1994 203 125 12 1 3 344 4 188

1995 251 109 46 2 408 3 172

1996 256 132 25 3 416 4 193

1997 239 169 30 5 443 1 242

1998 264 147 66 4 481 2 254

1999 255 214 68 4 541 4 235

2000 224 197 66 13 2 502 4 273

2001 237 187 72 7 503 6 244

2002 216 204 46 4 470 1 269

2003 210 277 63 5 1 556 7 308

2004 249 219 52 6 1 527 3 375

2005 221 179 66 1 467 2 362

2006 251 201 80 3 535 1 351

2007 265 221 79 8 573 3 379

2008 288 210 77 8 1 584 3 333

2009 302 143 105 2 1 553 1 376

2010 385 136 97 6 624 3 370

2011 423 81 162 13 679 3 370

2012 404 73 136 3 1 617 357

2013 450 72 161 5 2 690 1 434

2014 428 74 111 1 614 3 416

2015 436 48 206 9 3 702 2 399

2016 470 35 168 7 680 3 412

2017 533 46 141 6 1 727 3 466

Total 10 149 9 030 2 204 128 27 21 538 367 11 490

⁄ 1 Gross�figures;�special�forms�of�procedure�are�not�included.

⁄ 2 Net�figures.



XIX. GENERAL TREND IN THE WORK OF THE COURT (1952–2017) — NEW REFERENCES FOR A PRELIMINARY RULING BY MEMBER STATE PER YEAR

BE

BG

CZ

DK

DE

EEIE

ELES

FR

HR

IT

CY

LVLT

LUH

UM

TN

LAT

PLPT

ROSI

SKFI

SEU

KO

ther

s 1

Tota

l19

611

119

625

519

631

56

1964

24

619

654

21

719

661

119

675

113

13

2319

681

41

12

919

694

111

117

1970

421

22

332

1971

118

65

16

3719

725

201

410

4019

738

374

51

661

1974

515

65

71

3919

757

126

1514

14

169

1976

1128

18

1214

175

1977

161

302

147

95

8419

787

346

112

1138

512

319

7913

133

218

191

118

106

1980

142

243

1419

176

9919

8112

141

1711

417

510

819

8210

136

3918

214

129

1983

94

362

157

196

9819

8413

238

134

1022

912

919

8513

402

4511

614

813

919

8613

418

42

119

51

168

91 >>>

⁄ 1Ca

se C

-265

/00,

Cam

pina

Mel

kuni

e (C

our d

e ju

stic

e Be

nelu

x/Be

nelu

x G

erec

htsh

of).

Case

C-1

96/0

9, M

iles

and

Oth

ers

(Com

plai

nts

Boar

d of

the

Euro

pean

Sch

ools

). Ca

se C

-169

/15,

Mon

tis D

esig

n (C

our d

e ju

stic

e Be

nelu

x/Be

nelu

x G

erec

htsh

of).



BE

BG

CZ

DK

DE

EEIE

ELES

FR

HR

IT

CY

LVLT

LUH

UM

TN

LAT

PLPT

ROSI

SKFI

SEU

KO

ther

s 1

Tota

l19

8715

532

217

136

53

199

144

1988

304

341

3828

226

1617

919

8913

247

12

228

101

181

1413

919

9017

534

42

621

254

92

1214

119

9119

254

23

529

362

173

1418

619

9216

362

15

1522

118

118

162

1993

227

571

57

2224

143

312

204

1994

194

442

1336

461

131

2420

319

9514

851

310

1043

582

192

56

2025

119

9630

466

46

2470

210

66

34

2125

619

9719

746

12

910

503

2435

26

718

239

1998

127

493

555

1639

221

167

26

2426

419

9913

349

23

417

434

2356

74

522

255

2000

153

472

35

1250

1231

85

426

122

420

0110

553

14

415

402

1457

43

421

237

2002

188

597

38

374

1231

37

514

216

2003

183

432

48

945

428

151

44

2221

020

0424

450

118

821

481

228

121

45

2224

920

0521

14

512

1110

1718

23

3615

12

411

1222

120

0617

33

771

1417

2434

11

420

122

31

52

1025

120

0722

12

559

22

814

2643

12

1920

73

11

56

1626

520

0824

16

712

19

1712

391

33

46

3425

41

47

1428

820

0935

85

359

211

1128

291

43

101

2415

103

12

12

528

130

220

1037

93

1071

46

2233

493

29

624

158

1017

15

66

2938

520

1134

225

683

17

927

3144

101

213

2224

1111

141

312

426

423

2012

2815

78

685

61

1615

655

28

181

4423

614

139

38

1640

420

1326

107

697

34

526

2462

35

1020

4619

1114

171

44

1214

450

2014

2313

610

875

441

201

522

76

2330

1814

828

43

83

1242

820

1532

58

779

28

236

255

479

87

1440

2315

818

55

47

161

436

2016

2618

512

841

66

4723

262

98

115

126

2019

2114

36

75

2347

020

1721

164

814

97

124

2325

357

510

122

3831

1921

163

613

811

533

Tota

l84

111

7 5

719

22

449

25

103

182

460

979

11

1 44

5 7

60

55

92

158

31

013

521

127

174

139

20

44

115

134

623

310

149

⁄ 1Ca

se C

-265

/00,

Cam

pina

Mel

kuni

e (C

our d

e ju

stic

e Be

nelu

x/Be

nelu

x G

erec

htsh

of).

Case

C-1

96/0

9, M

iles

and

Oth

ers

(Com

plai

nts

Boar

d of

the

Euro

pean

Sch

ools

). Ca

se C

-169

/15,

Mon

tis D

esig

n (C

our d

e ju

stic

e Be

nelu

x/Be

nelu

x G

erec

htsh

of).



XX. GENERAL TREND IN THE WORK OF THE COURT (1952–2017) — NEW REFERENCES FOR A PRELIMINARY RULING BY MEMBER STATE AND BY COURT OR TRIBUNAL

Total

Belgium

Cour constitutionnelle 34 Cour de cassation 94

Conseil d'État 82 Other courts or tribunals 631 841

BulgariaВърховен�касационен�съд� 5

Върховен�административен�съд� 19 Other courts or tribunals 93 117

Czech Republic

Ústavní soud Nejvyšší soud 9

Nejvyšší správní soud 28 Other courts or tribunals 20 57

DenmarkHøjesteret 36

Other courts or tribunals 156 192

Germany

Bundesverfassungsgericht 2 Bundesgerichtshof 229

Bundesverwaltungsgericht 131

Bundesfinanzhof 319

Bundesarbeitsgericht 38

Bundessozialgericht 76 Other courts or tribunals 1 654 2 449

EstoniaRiigikohus 10


IrelandSupreme Court 35

High Court 33 Other courts or tribunals 35 103

GreeceΆρειος�Πάγος 12

Συμβούλιο�της�Επικρατείας 59 Other courts or tribunals 111 182

SpainTribunal Constitucional 1

Tribunal Supremo 78 Other courts or tribunals 381 460

France

Conseil constitutionnel 1 Cour de cassation 127

Conseil d'État 125 Other courts or tribunals 726 979

>>>



Croatia

Ustavni sud Vrhovni sud

Visoki upravni sud Visoki prekršajni sud


Italy

Corte Costituzionale 3 Corte suprema di Cassazione 150

Consiglio di Stato 151 Other courts or tribunals 1 141 1 445

CyprusΑνώτατο�Δικαστήριο 4


LatviaAugstākā�tiesa� 21

Satversmes tiesa 1 Other courts or tribunals 38 60

Lithuania

Konstitucinis Teismas 1 Aukščiausiasis�Teismas 18

Vyriausiasis administracinis teismas 21 Other courts or tribunals 15 55

Luxembourg

Cour constitutionnelle 1 Cour de cassation 28

Cour administrative 28 Other courts or tribunals 35 92

Hungary

Kúria 27 Fővárosi�ĺtélőtábla 7 Szegedi Ítélötáblá 2


MaltaQorti Kostituzzjonali

Qorti tal-Appell Other courts or tribunals 3 3

Netherlands

Hoge Raad 285 Raad van State 122

Centrale Raad van Beroep 65 College van Beroep voor het Bedrijfsleven 156

Tariefcommissie 35 Other courts or tribunals 350 1 013

Austria

Verfassungsgerichtshof 5 Oberster Gerichtshof 124

Verwaltungsgerichtshof 107 Other courts or tribunals 285 521

Poland

Trybunał�Konstytucyjny 1 Sąd�Najwyższy 18

Naczelny�Sąd�Administracyjny� 44 Other courts or tribunals 64 127

>>>



PortugalSupremo Tribunal de Justiça 15

Supremo Tribunal Administrativo 63 Other courts or tribunals 96 174

RomaniaÎnalta�Curte�de�Casație�și�Justiție 12

Curtea de Apel 75 Other courts or tribunals 52 139

SloveniaUstavno�sodišče� 1 Vrhovno�sodišče� 14


SlovakiaÚstavný Súd Najvyšší súd 16


Finland

Korkein oikeus 23 Korkein hallinto-oikeus 56

Työtuomioistuin 5 Other courts or tribunals 31 115

Sweden

Högsta Domstolen 22 Högsta förvaltningsdomstolen 12

Marknadsdomstolen 5 Arbetsdomstolen 4


United Kingdom

House of Lords 40 Supreme Court 14 Court of Appeal 84


OthersCour de justice Benelux/Benelux Gerechtshof 1 2

Complaints Board of the European Schools 2 1 3

Total 10 149

⁄ 1 Case C-265/00, Campina Melkunie.Case C-169/15, Montis Design.

⁄ 2 Case C-196/09, Miles and Others.



XXI. GENERAL TREND IN THE WORK OF THE COURT (1952–2017) — ACTIONS FOR FAILURE TO FULFIL OBLIGATIONS BROUGHT AGAINST THE MEMBER STATES

BE

BG

CZ

DK

DE

EEIE

ELES

FR

HR

IT

CY

LVLT

LUH

UM

TN

LAT

PLPT

ROSI

SKFI

SEU

KTo

tal

386

1134

4129

122

209

409

249

418

264

512

13

269

1916

148

139

8020

28

1715

5854

142

3 90

0



XXII. ACTIVITY OF THE REGISTRY OF THE COURT OF JUSTICE (2015–17)

Type of intervention 2015 2016 2017

Number of documents entered in the register of the Registry 89 328 93 215 99 266

Percentage of procedural documents lodged by e-Curia 69% 75% 73%

Number of hearings convened and organised 256 270 263

Number of sittings for the delivery of Opinions convened and organised 239 319 301

Number of judgments, opinions and orders terminating the proceedings served on the parties

570 645 654

Number of minutes of hearings drawn up (oral submissions, Opinions and judgments) 894 1 001 1 033

Number of notices in the OJ concerning new cases 639 660 679

Number of notices in the OJ concerning completed cases 546 522 637

E/COMPOSITION OF THE COURT OF JUSTICE

(Order of precedence as at 31 December 2017)

First row, from left to right:

M.�Wathelet,�First�Advocate�General;�T.�von�Danwitz,�President�of�Chamber;�M.�Ilešič,�President�of�Chamber;�A. Tizzano, Vice-President of the Court; K. Lenaerts, President of the Court; R. Silva de Lapuerta, President of Chamber; L. Bay Larsen, President of Chamber; J.L. da Cruz Vilaça, President of Chamber; A. Rosas, President of Chamber

Second row, from left to right:

E. Sharpston, Advocate General; E. Juhász, Judge; C. Vajda, President of Chamber; E. Levits, President of Chamber; J. Malenovský, President of Chamber; C.G. Fernlund, President of Chamber; J. Kokott, Advocate General; A. Borg Barthet, Judge

Third row, from left to right:

M. Berger, Judge; M. Safjan, Judge; A. Arabadjiev, Judge; Y. Bot, Advocate General; P. Mengozzi, Advocate General; J.-C. Bonichot, Judge; C. Toader, Judge; D. Šváby, Judge

Fourth row, from left to right:

C.�Lycourgos,�Judge;�K.�Jürimäe,�Judge;�S.�Rodin,�Judge;�E.�Jarašiūnas,�Judge;�A.�Prechal,�Judge;�N.�Wahl,�Advocate�General; F. Biltgen, Judge; M. Szpunar, Advocate General

Fifth row, from left to right:

E. Tanchev, Advocate General; H. Saugmandsgaard Øe, Advocate General; M. Vilaras, Judge; M. Campos Sánchez-Bordona, Advocate General; E. Regan, Judge; M. Bobek, Advocate General; A. Calot Escobar, Registrar



1. CHANGE IN THE COMPOSITION OF THE COURT OF JUSTICE IN 2017

There were no changes in the composition of the Court of Justice in 2017.



2. ORDER OF PRECEDENCE

FROM 1 JANUARY 2017 TO 6 OCTOBER 2017

K. LENAERTS, PresidentA. TIZZANO, Vice-PresidentR. SILVA de LAPUERTA, President of the First ChamberM.�ILEŠIČ,�President�of�the�Second�ChamberL. BAY LARSEN, President of the Third ChamberT. von DANWITZ, President of the Fourth ChamberJ.L. da CRUZ VILAÇA, President of the Fifth ChamberM. WATHELET, First Advocate GeneralE. JUHÁSZ, President of the Ninth ChamberM. BERGER, President of the Tenth ChamberA. PRECHAL, President of the Seventh ChamberM. VILARAS, President of the Eighth ChamberE. REGAN, President of the Sixth ChamberA. ROSAS, JudgeJ. KOKOTT, Advocate GeneralA. BORG BARTHET, JudgeJ. MALENOVSKÝ, JudgeE. LEVITS, JudgeE. SHARPSTON, Advocate GeneralP. MENGOZZI, Advocate GeneralY. BOT, Advocate GeneralJ.-C. BONICHOT, JudgeA. ARABADJIEV, JudgeC. TOADER, JudgeM. SAFJAN, JudgeD. ŠVÁBY, JudgeE.�JARAŠIŪNAS,�JudgeC.G. FERNLUND, JudgeC. VAJDA, JudgeN. WAHL, Advocate GeneralS. RODIN, JudgeF. BILTGEN, JudgeK. JÜRIMÄE, JudgeM. SZPUNAR, Advocate GeneralC. LYCOURGOS, JudgeM. CAMPOS SÁNCHEZ-BORDONA, Advocate GeneralH. SAUGMANDSGAARD ØE, Advocate GeneralM. BOBEK, Advocate GeneralE. TANCHEV, Advocate General

A. CALOT ESCOBAR, Registrar



FROM 7 OCTOBER 2017 TO 31 DECEMBER 2017

K. LENAERTS, PresidentA. TIZZANO, Vice-PresidentR. SILVA de LAPUERTA, President of the First ChamberM.�ILEŠIČ,�President�of�the�Second�ChamberL. BAY LARSEN, President of the Third ChamberT. von DANWITZ, President of the Fourth ChamberJ.L. da CRUZ VILAÇA, President of the Fifth ChamberM. WATHELET, First Advocate GeneralA. ROSAS, President of the Seventh ChamberJ. MALENOVSKÝ, President of the Eighth ChamberE. LEVITS, President of the Tenth ChamberC.G. FERNLUND, President of the Sixth ChamberC. VAJDA, President of the Ninth ChamberJ. KOKOTT, Advocate GeneralE. JUHÁSZ, JudgeA. BORG BARTHET, JudgeE. SHARPSTON, Advocate GeneralP. MENGOZZI, Advocate GeneralY. BOT, Advocate GeneralJ.-C. BONICHOT, JudgeA. ARABADJIEV, JudgeC. TOADER, JudgeM. SAFJAN, JudgeD. ŠVÁBY, JudgeM. BERGER, JudgeA. PRECHAL, JudgeE.�JARAŠIŪNAS,�JudgeN. WAHL, Advocate GeneralS. RODIN, JudgeF. BILTGEN, JudgeK. JÜRIMÄE, JudgeM. SZPUNAR, Advocate GeneralC. LYCOURGOS, JudgeM. CAMPOS SÁNCHEZ-BORDONA, Advocate GeneralM. VILARAS, JudgeE. REGAN, JudgeH. SAUGMANDSGAARD ØE, Advocate GeneralM. BOBEK, Advocate GeneralE. TANCHEV, Advocate General

A. CALOT ESCOBAR, Registrar



3. FORMER MEMBERS OF THE COURT OF JUSTICE

(in�order�of�their�entry�into�office)

JUDGES

Massimo PILOTTI, Judge (1952–1958), President from 1952 to 1958 (†)Petrus SERRARENS, Judge (1952–1958) (†)Otto RIESE, Judge (1952–1963) (†)Louis DELVAUX, Judge (1952–1967) (†)Jacques RUEFF, Judge (1952–1959 and 1960–1962) (†)Charles Léon HAMMES, Judge (1952–1967), President from 1964 to 1967 (†)Adrianus VAN KLEFFENS, Judge (1952–1958) (†)Maurice LAGRANGE, Advocate General (1952–1964) (†)Karl ROEMER, Advocate General (1953–1973) (†)Rino ROSSI, Judge (1958–1964) (†)Nicola CATALANO, Judge (1958–1962) (†)Andreas Matthias DONNER, Judge (1958–1979), President from 1958 to 1964 (†)Alberto TRABUCCHI, Judge (1962–1972), then Advocate General (1973–1976) (†)Robert LECOURT, Judge (1962–1976), President from 1967 to 1976 (†)Walter STRAUSS, Judge (1963–1970) (†)Riccardo MONACO, Judge (1964–1976) (†)Joseph GAND, Advocate General (1964–1970) (†)Josse J. MERTENS de WILMARS, Judge (1967–1984), President from 1980 to 1984 (†)Pierre PESCATORE, Judge (1967–1985) (†)Hans KUTSCHER, Judge (1970–1980), President from 1976 to 1980 (†)Alain Louis DUTHEILLET DE LAMOTHE, Advocate General (1970–1972) (†)Henri MAYRAS, Advocate General (1972–1981) (†)Cearbhall O’DALAIGH, Judge (1973–1974) (†)Max SØRENSEN, Judge (1973–1979) (†)Jean-Pierre WARNER, Advocate General (1973–1981) (†)Alexander J. MACKENZIE STUART, Judge (1973–1988), President from 1984 to 1988 (†)Gerhard REISCHL, Advocate General (1973–1981) (†)Aindrias O’KEEFFE, Judge (1974–1985) (†)Francesco CAPOTORTI, Judge (1976), then Advocate General (1976–1982) (†)Giacinto BOSCO, Judge (1976–1988) (†)Adolphe TOUFFAIT, Judge (1976–1982) (†)Thijmen KOOPMANS, Judge (1979–1990) (†)Ole DUE, Judge (1979–1994), President from 1988 to 1994 (†)Ulrich EVERLING, Judge (1980–1988)Alexandros CHLOROS, Judge (1981–1982) (†)Sir Gordon SLYNN, Advocate General (1981–1988), then Judge (1988–1992) (†)Pieter VERLOREN van THEMAAT, Advocate General (1981–1986) (†)Simone ROZÈS, Advocate General (1981–1984)Fernand GRÉVISSE, Judge (1981–1982 and 1988–1994) (†)Kai BAHLMANN, Judge (1982–1988) (†)G. Federico MANCINI, Advocate General (1982–1988), then Judge (1988–1999) (†)



Yves GALMOT, Judge (1982–1988) (†)Constantinos KAKOURIS, Judge (1983–1997) (†)Carl Otto LENZ, Advocate General (1984–1997)Marco DARMON, Advocate General (1984–1994) (†)René JOLIET, Judge (1984–1995) (†)Thomas Francis O’HIGGINS, Judge (1985–1991) (†)Fernand SCHOCKWEILER, Judge (1985–1996) (†)Jean MISCHO, Advocate General (1986–1991 and 1997–2003) (†)José Carlos de CARVALHO MOITINHO de ALMEIDA, Judge (1986–2000)José Luís da CRUZ VILAÇA, Advocate General (1986–1988)Gil Carlos RODRÍGUEZ IGLÉSIAS, Judge (1986–2003), President from 1994 to 2003Manuel DIEZ de VELASCO, Judge (1988–1994) (†)Manfred ZULEEG, Judge (1988–1994) (†)Walter VAN GERVEN, Advocate General (1988–1994) (†)Francis�Geoffrey�JACOBS,�Advocate�General�(1988–2006)Giuseppe TESAURO, Advocate General (1988–1998)Paul Joan George KAPTEYN, Judge (1990–2000)Claus Christian GULMANN, Advocate General (1991–1994), then Judge (1994–2006)John L. MURRAY, Judge (1991–1999)David Alexander Ogilvy EDWARD, Judge (1992–2004)Antonio Mario LA PERGOLA, Judge (1994 and 1999–2006), Advocate General (1995–1999) (†)Georges COSMAS, Advocate General (1994–2000)Jean-Pierre PUISSOCHET, Judge (1994–2006)Philippe LÉGER, Advocate General (1994–2006)Günter�HIRSCH,�Judge�(1994–2000)Michael Bendik ELMER, Advocate General (1994–1997)Peter JANN, Judge (1995–2009)Hans RAGNEMALM, Judge (1995–2000) (†)Leif SEVÓN, Judge (1995–2002)Nial FENNELLY, Advocate General (1995–2000)Melchior WATHELET, Judge (1995–2003)Dámaso RUIZ-JARABO COLOMER, Advocate General (1995–2009) (†)Romain SCHINTGEN, Judge (1996–2008)Krateros IOANNOU, Judge (1997–1999) (†)Siegbert ALBER, Advocate General (1997–2003)Antonio SAGGIO, Advocate General (1998–2000) (†)Vassilios SKOURIS, Judge (1999–2015), President from 2003 to 2015Fidelma O’KELLY MACKEN, Judge (1999–2004)Ninon COLNERIC, Judge (2000–2006)Stig von BAHR, Judge (2000–2006)José Narciso da CUNHA RODRIGUES, Judge (2000–2012)Christiaan Willem Anton TIMMERMANS, Judge (2000–2010)Leendert A. GEELHOED, Advocate General (2000–2006) (†)Christine STIX-HACKL, Advocate General (2000–2006)Luís Miguel POIARES PESSOA MADURO, Advocate General (2003–2009)Konrad Hermann Theodor SCHIEMANN, Judge (2004–2012)Jerzy MAKARCZYK, Judge (2004–2009)Pranas�KŪRIS,�Judge�(2004–2010)



Georges ARESTIS, Judge (2004–2014)Ján�KLUČKA,�Judge�(2004–2009)Uno LÕHMUS, Judge (2004–2013)Aindrias Ó CAOIMH, Judge (2004–2015)Pernilla LINDH, Judge (2006–2011)Ján MAZÁK, Advocate General (2006–2012)Verica TRSTENJAK, Advocate General (2006–2012)Jean-Jacques KASEL, Judge (2008–2013)Niilo JÄÄSKINEN, Advocate General (2009–2015)Pedro CRUZ VILLALÓN, Advocate General (2009–2015)

PRESIDENTS

Massimo PILOTTI (1952–1958) (†) Andreas Matthias DONNER (1958–1964) (†)Charles Léon HAMMES (1964–1967) (†)Robert LECOURT (1967–1976) (†)Hans KUTSCHER (1976–1980) (†)Josse J. MERTENS de WILMARS (1980–1984) (†)Alexander John MACKENZIE STUART (1984–1988) (†)Ole DUE (1988–1994) (†)Gil Carlos RODRÍGUEZ IGLÉSIAS (1994–2003)Vassilios SKOURIS (2003–2015)

REGISTRARS

Albert VAN HOUTTE (1953–1982) (†)Paul HEIM (1982–1988)Jean-Guy GIRAUD (1988–1994)Roger GRASS (1994–2010)



CHAPTER IIGENERAL COURT

CHAPTER II/GENERAL COURT

A/ACTIVITY OF THE GENERAL COURT IN 2017

By Mr Marc JAEGER, President of the General Court

After�the�numerous�and�profound�changes�of�2016�brought�about�by�the�two�first�phases�of�the�implementation�of the reform of the judicial structure of the European Union, 2017 proved to be a relatively stable year.

There were, nonetheless, two developments in the composition of the General Court resulting from the entry into�office�of�Mr�C.�Mac�Eochaidh�on�8�June�2017�and�Mr�G.�De�Baere�on�4�October�2017,�respectively�the�sixth�and seventh judges appointed in the context of the second phase of the reform (which provided that, in addition to�the�dissolution�of�the�Civil�Service�Tribunal�and�the�transfer�to�the�General�Court�of�jurisdiction�to�rule�at�first�instance in disputes between the European Union and its servants, seven new judges would be appointed at the General Court 1).�Paradoxically,�the�second�phase�of�the�reform�was�thus�completed�before�the�first�phase� (in which 12 new judges were to be appointed from 25 December 2015 onwards), in the context of which a 12th judge still needs to be appointed.

As at 31 December 2017, the General Court was thus composed of the President, Vice-President and 44 other judges,�assigned�either�to�one�of�the�eight�chambers�comprising�five�judges�or�to�the�sole�chamber�comprising�four judges (all of those chambers ordinarily sit in formations of three judges), awaiting the appointment and assignment�to�a�chamber�of�the�final�judge�due�under�the�first�phase�of�the�reform.�Alongside�those�nine�chambers,�the Appeal Chamber, which has jurisdiction to rule on appeals brought against decisions adopted by the Civil Service Tribunal before it was dissolved on 31 August 2016, continued to exercise its functions. In all likelihood, that�chamber�will�cease�to�exist�at�some�point�in�2018�once�it�has�adjudicated�on�the�final�appeal�cases�still�pending.

Moreover,�2017�may�be�regarded�as�the�first�full�year�which�put�the�new�organisation�of�the�General�Court�to�the�test. Its new organisation was designed to enable it better to deliver its mandate by simultaneously pursuing a number of ambitious objectives: speed, quality, coherence and, in short, authority of its case-law.

Given�the�challenge�posed�by�the�integration�of�a�considerable�number�of�new�judges,�this�first�year�of�actual�implementation of the reform can be deemed to have been highly satisfactory.

In�spite�of�the�lodging�of�an�exceptionally�large�group�of�related�cases�in�the�field�of�banking�and�finance�(in�the�region of 100 cases), the point of equilibrium between the number of cases lodged and the number of cases closed was almost reached (917 cases lodged, 895 cases closed 2). In particular, the General Court’s productivity increased considerably (140 more cases closed than in 2016, that is an increase of 18.5%) following the inevitable dip experienced by the General Court in the context of its triennial renewal and its internal reorganisation resulting from the reform. That productivity is set to grow further over the coming year, during which time the General Court should be reaching its new cruising speed.

Most importantly, the duration of proceedings — which is a key indicator of per formance — was once again reduced quite considerably, with an average of 16.3 months in respect of cases decided by

1/ �Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2015 L 341, p. 14), and Regulation (EU, Euratom) 2016/1192 of the European Parliament�and�of�the�Council�of�6�July�2016�on�the�transfer�to�the�General�Court�of�jurisdiction�at�first�instance�in�disputes�between�the�European Union and its servants (OJ 2016 L 200, p. 137).

2/ �These totals do not take account of the 47 cases lodged and the 53 cases closed before a judge hearing an application for interim measures.

A/ACTIVITY OF THE GENERAL COURT IN 2017


judgment�or�order�(namely�13%�shorter�than�in�2016).�The�tendency�witnessed�for�the�past�five�years�(a�40%�decrease since 2013) thus became noticeably more pronounced and did so in respect of all contentious matters.

Finally,�it�is�worth�underlining�that�the�number�of�cases�referred�to�an�extended�Chamber�sitting�with�five�judges�increased�very�significantly�(84�cases�referred,�29�in�2016),�which�is�illustrative�of�one�of�the�methods�of�organisation�and operation chosen by the General Court to pursue its objective — which it set itself in the context of the implementation of the reform — of maintaining its quality standards. Accordingly, in respect of the number of cases lodged, the proportion of cases referred to an extended Chamber bordered on 10% in 2017, which may be contrasted with the average number of such references made during the period preceding the reform of the judicial structure of the European Union (from 2010 to 2015), which was in the region of 1%.

It�is�too�soon�to�draw�from�this�sample�of�statistics�any�definitive�conclusions�regarding�the�effects�which�will�be�felt�once�the�reform�is�complete,�the�final�phase�of�which�will�begin�on�1�September�2019.�These�statistics�are,�however, indicative of the General Court’s desire swiftly to bear the fruits of the reform by enabling individuals to�use�it�to�its�full�potential,�with�a�view�to�providing�an�efficient,�diligent�and�quality�justice�system�at�the�European�Union level.

A/ACTIVITYOF THE GENERAL COURT IN 2017


B/CASE-LAW OF THE GENERAL COURT IN 2017

TRENDS IN THE CASE-LAW OF THE GENERAL COURT IN 2017By Vice-President Marc van DER WOUDE

One�of�the�significant�events�that�marked�the�development�of�the�case-law�of�the�General�Court�in�2017�is�the�reincorporation�of�litigation�involving�the�European�civil�service�at�first�instance�within�the�General�Court.�This�regained jurisdiction led the Court to deliver more decisions relating to natural persons, namely those employed by the institutions of the European Union, in particular as regards observance of methods of calculating remuneration by which the administration has agreed to be bound (judgment of 14 September 2017, Bodson and Others v EIB, T-504/16 and T-505/16, EU:T:2017:603) or, again, the obligations borne by the administration when it receives a request for assistance in relation to psychological harassment (judgment of 24 April 2017, HF v Parliament, T-584/16, EU:T:2017:282).

However, the civil service is not the only type of litigation in which the General Court is called upon to guarantee judicial protection of the interests of natural persons. That protection must also be provided in other spheres, such as that of restrictive measures adopted by the European Union. The General Court has thus continued to review the measures imposed by the European Union, in particular those adopted on the basis of criminal proceedings initiated in third States, such as Tunisia or Ukraine, against natural persons accused of embezzling public funds (judgment of 7 July 2017, Azarov v Council, T-215/15, under appeal, 1 EU:T:2017:479). Questions relating to the judicial protection of natural persons also arise in cases of potential interest to any citizen of the Union, such as those relating to the right of access to documents based on Regulation No 1049/2001 2 or those concerning European citizens’ initiatives. As regards the latter initiatives, the General Court has made clear that they may extend to acts linked with the negotiation of international agreements (judgment of 10 May 2017, Efler and Others v Commission, T-754/14, EU:T:2017:323), and has emphasised the need for the Commission to properly state the reasons for its decisions refusing to register such initiatives (judgment of 3 February 2017, Minority SafePack — one million signatures for diversity in Europe v Commission, T-646/13, EU:T:2017:59).

It may be noted, next, that litigation before the General Court continues to diversify in matters of economic law. Far from being limited solely to competition law, it is changing, in particular, in line with the powers granted to the various institutions and agencies of the European Union responsible for the further development of the internal market and monetary policy. In that context, the Court has thus been able, for example, to continue to develop�its�case-law�relating�to�the�banking�sector�by�defining�the�outlines�of�the�prudential�supervision�carried�out by the European Central Bank (ECB), in the light of the objectives of the legislation in question, which is designed�in�particular�to�provide�the�ECB�with�an�overall�view�of�the�risks�liable�to�affect�a�credit�institution�and�also to avoid the fragmentation of prudential supervision between the ECB and the national authorities (judgments of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB, T-122/15, under appeal, 3 EU:T:2017:337, and of

1/ � Case C-530/17 P, Azarov v Council.


3/ � Case C-450/17 P, Landeskreditbank Baden-Württemberg.









13 December 2017, Crédit mutuel Arkéa v ECB, T-52/16, EU:T:2017:902). There has also been a sharp increase in litigation in relation to merger control, a number of decisions having been delivered concerning this type of transaction, which tend to follow economic cycles (judgments of 7 March 2017, United Parcel Service v Commission, T-194/13, under appeal, 4 EU:T:2017:144; of 26 October 2017, Marine Harvest v Commission, T-704/14, under appeal, 5 EU:T:2017:753; and of 26 October 2017, KPN v Commission, T-394/15, not published, EU:T:2017:756). Furthermore, the increasingly complex nature of cases involving assessments of an economic nature seems to lead towards the strengthening of review of respect for the rights of the defence. It has been held, in particular, that respect for the rights of the defence requires that the parties involved in a merger have been able to express their views on the econometric model which the Commission used for the purposes of its decision (judgment of 7 March 2017, United Parcel Service v Commission, T-194/13, under appeal, 6 EU:T:2017:144).

Last, an important question of a transversal nature, which has particularly marked several categories of litigation before the General Court in 2017, is the question of the need for action within a reasonable period in administrative and judicial proceedings.

As regards respect for that period as a principle of sound administration, the Court referred to the case-law according to which a request for assistance in the event of psychological harassment must be dealt with expeditiously (judgment of 24 April 2017, HF v Parliament, T-584/16, EU:T:2017:282). It also made clear that the statement�of�reasons�for�a�decision�not�to�promote�an�official�must�be�provided�no�later�than�the�time�of�the�rejection of his complaint and that failure to comply with that obligation to state reasons may give rise to a state of uncertainty and frustration that justify the award of compensation (judgment of 26 October 2017, Paraskevaidis v Cedefop, T-601/16, EU:T:2017:757). Furthermore, the Court has considered that the Commission had not complied with the ‘reasonable period’ principle by taking more than nine months — the period prescribed in the legislation previously applicable — to re-examine a request for remission of import duties, after the Court had annulled an earlier decision rejecting that request (judgment of 11 December 2017, Léon Van Parys v Commission, T-125/16, EU:T:2017:884). Last, the Court considered that a breach of the ‘reasonable period’ principle by the Tunisian authorities, in the context of the judicial proceedings on which the Council’s decision to maintain the applicant’s name�on�the�list�of�persons�covered�was�based,�did�not�necessarily�affect�the�legality�of�that�decision,�but�pointed�out,�however,�that�such�a�breach�may�require�the�Court�to�carry�out�the�necessary�verifications�(judgment� of 5 October 2017, Mabrouk v Council, T-175/15, EU:T:2017:694).

As regards compliance with the ‘reasonable period’ principle by the Courts of the European Union, the Court, in a�series�of�five�judgments�(judgments�of�10�January�2017,�Gascogne Sack Deutschland and Gascogne v European Union, T-577/14, under appeal, 7 EU:T:2017:1; of 1 February 2017, Aalberts Industries v European Union, T-725/14, EU:T:2017:47; of 1 February 2017, Kendrion v European Union, T-479/14, under appeal, 8 EU:T:2017:48; of 17 February 2017, ASPLA and Armando Álvarez v European Union, T-40/15, under appeal, 9 EU:T:2017:105; and of 7 June 2017, Guardian Europe v European Union, T-673/15, under appeal, 10 EU:T:2017:377),�clarified�the�concept�

4/ �Case�C-265/17�P,�Commission v United Parcel Service.

5/ � Case C-10/18 P, Marine Harvest v Commission.

6/ �Case C-265/17 P, Commission v United Parcel Service.

7/ �Case�C-138/17�P,�European Union v Gascogne Sack Deutschland and Gascogne and Case C-146/17 P, Gascogne Sack Deutschland and Gascogne v European Union.

8/ � Case C-150/17 P, European Union v Kendrion.

9/ � Case C-174/17 P, European Union v ASPLA and Armando Álvarez and Case C-222/17 P, ASPLA and Armando Álvarez v Europea Union.

10/ �Case�C-447/17�P,�European Union v Guardian Europe and Case C-479/17 P, Guardian Europe v European Union.

















of�excessive�length�of�judicial�proceedings�in�the�field�of�antitrust�law�and�defined�the�circumstances�in�which�breach�of�that�principle�may�cause�the�European�Union�to�incur�financial�liability.�The�Court�considered,�in�particular, that such a breach may give rise to material injury corresponding to the cost of providing a bank guarantee for the period in excess of what may be considered reasonable and also to non-material injury resulting from an unusually long situation of uncertainty.

I. JUDICIAL PROCEEDINGS

In 2017, the Court had the opportunity to rule, in particular, on the extent of the jurisdiction of the EU judicature and�on�the�concept�of�an�actionable�measure.�It�also�clarified�the�conditions�relating�to�representation�of�a�party�by a lawyer.

1. JURISDICTION OF THE EUROPEAN UNION JUDICATURE

In the cases that gave rise to the orders of 28 February 2017, NF v European Council (T-192/16, under appeal, 11 EU:T:2017:128); of 28 February 2017, NG v European Council (T-193/16, under appeal, 12 EU:T:2017:129); and of 28 February 2017, NM v European Council (T-257/16, under appeal, 13 EU:T:2017:130), the Court was required to rule on the actions brought by three asylum seekers against the agreement allegedly concluded between the European Council and the Republic of Turkey on 18 March 2016 in response to the migration crisis resulting from the situation in Syria. According to the applicants, that agreement, set out in an ‘EU-Turkey statement’ 14 which had been adopted on the same date and formed the subject matter of a European Council press release, had been concluded in breach of the rules of the TEU Treaty on the conclusion of international agreements by the European Union.

Adjudicating on the plea of lack of jurisdiction raised by the European Council by way of principal plea on the basis of Article 130 of its Rules of Procedure, and observing that that plea of lack of jurisdiction must be examined before the plea of inadmissibility raised by the defendant in the alternative, the Court noted that, formally, the applicants are requesting annulment of an international agreement. However, the Court stated that review of legality by the EU judicature of measures relating to international treaty law could concern only the measure by which an institution had sought to conclude the international agreement at issue and not the international agreement as such. Consequently, the Court interpreted the form of order sought by the applicants as seeking, in essence, the annulment of a measure by which the European Council had sought to conclude, on behalf of the European Union, an agreement with the Republic of Turkey on 18 March 2016.

After examining the content of the ‘EU-Turkey statement’ and all the circumstances in which that statement had been issued, the Court considered that it did not constitute an act of the European Council — or an act of another institution of the European Union — whereby the European Council had sought to conclude an agreement with the Republic of Turkey. In that regard, the Court emphasised that, notwithstanding the regrettably ambiguous

11/ � Case C-208/17 P, NF v European Council.

12/ � Case C-209/17 P, NG v European Council.

13/ � Case C-210/17 P, NM v European Council..

14/ �Statement reporting the results of ‘the third meeting since November 2015 dedicated to deepening Turkey-EU relations as well as addressing the migration crisis’ between ‘the Members of the European Council’ and ‘their Turkish counterpart’.






terms of the EU-Turkey statement, as published by means of the press release at issue, it had been in their capacity as Heads of State and Government that the representatives of the Member States had met the Turkish Prime Minister on 18 March 2016 in the premises shared by the European Council and the Council of the European Union, a meeting that had led to the adoption of the ‘EU-Turkey statement’. Accordingly, the Court considered that the plea of lack of jurisdiction raised by the European Council must be upheld.

2. CONCEPT OF A MEASURE AGAINST WHICH AN ACTION MAY BE BROUGHT

In the case that gave rise to the order of 11 October 2017, Guardian Glass España, Central Vidriera v Commission (T-170/16, EU:T:2017:722), the Court was required to adjudicate on an application for annulment of the decision contained in a document addressed to the Spanish authorities by the European Commission. The document in question concerned the Commission’s assessment of the claims which the applicant had submitted to those authorities concerning the compatibility with the internal market of the State aid which it had received in the form of tax credits. The case comes within the context of the recovery by the Spanish authorities of State aid paid in the form of tax credits, under an aid scheme which the Commission had declared to be unlawful. In the decision�finding�that�the�aid�was�unlawful,�the�Commission�had�stated�that�its�assessment�related�to�the�aid�scheme and was ‘without prejudice to whether individual aid [might] be regarded, in full or in part, as compatible with the [internal] market on its own merits, either in a subsequent Commission decision or under exempting regulations’. A recovery order had been served on the applicant by the Spanish authorities following the Commission’s decision.

The�Court�held�that�the�contested�measure�did�not�produce�binding�legal�effects�of�such�a�nature�as�to�affect�the applicant’s interests by bringing about a distinct change in its legal position and, consequently, could not form the subject matter of an action for annulment.

In�arriving�at�that�conclusion,�the�Court�observed,�first�of�all,�that�when�the�Commission�is�faced�with�an�aid�scheme it may, as it did in this case, rule on the general characteristics of the aid scheme in question without examining each particular case in which it applies. It is for the Member State concerned to verify the individual situation of each undertaking concerned by the recovery operation when it implements the Commission’s decision. If�it�encounters�unforeseen�or�unforeseeable�difficulties�when�doing�so,�the�Member�State�must�notify�the�Commission in accordance with its duty of sincere cooperation. As regards the Commission’s letters to the national authorities in the context of such exchanges, they are not binding, as they merely express the Commission’s opinion as to whether the implementing measures proposed by the Member State concerned, in the light of the difficulties�which�it�has�encountered,�are�acceptable�under�EU�law.

The Court noted, next, that the purpose of the exchanges between the Spanish authorities and the Commission, as apparent from the contested measure, is part of the implementation of the decision declaring the aid unlawful. In fact, at the stage of recovery of the aid, the Spanish authorities had examined whether the condition related to�the�incentive�effect�of�that�aid�had�been�satisfied�in�the�case�of�the�aid�paid�to�the�applicant�and,�in�that�context,�had asked the Commission about the manner in which that condition set out in that decision was to be interpreted. It was in order to answer that question, by providing them with information about the interpretation to be given to�the�incentive�effect,�that�the�author�of�the�contested�measure�had�drafted�that�measure�and�sent�it�to�the�Spanish authorities.

The�Court�also�rejected�the�applicant’s�argument�that�as�the�Kingdom�of�Spain�had�notified�the�aid,�the�Commission�was required to take a view on the compatibility of that aid by adopting a decision. In that regard, the Court held that the content of the exchanges between the Spanish authorities and the Commission showed that those authorities wished to obtain information from the Commission in order to answer, in the submissions which they




were required to lodge before the Spanish courts, the questions arising for certain recipients who had challenged the�recovery�orders,�but�the�steps�taken�in�that�regard�by�those�authorities�could�not�be�analysed�as�a�notification�of aid paid to the applicant that would have required the Commission to adopt a decision under Regulation (EC) No 659/1999. 15�Last,�according�to�the�Court,�the�Spanish�authorities’�perception�of�the�legal�effects�produced�by the contested measure, even on the assumption that that perception were established, could not serve to determine the admissibility of the action against that measure.

3. REPRESENTATION BY A LAWYER WHO IS NOT A THIRD PARTY

In the case that gave rise to the order of 20 November 2017, BikeWorld v Commission (T-702/15, EU:T:2017:834), the Court was required to adjudicate an action for annulment in part of the Commission decision establishing the existence of unlawful aid incompatible with the internal market implemented by the Federal German Republic in�favour�of�the�Nürburgring�racing�circuit.�While�not�formally�raising�an�objection�of�inadmissibility,�the�Commission�claimed that there was an absolute bar to proceedings on the ground that the action did not satisfy the requirements laid down in Articles 19 and 21 of the Statute of the Court of Justice of the European Union, in so far as the lawyer representing the applicant was one of its two associates and therefore not independent of the applicant. On that point, the applicant claimed that at the time when the application was lodged its representative was involved with the applicant only to the extent that he held 10% of its shares, but that he did not hold any role in its administrative�and�financial�management�and�that�he�was�representing�the�applicant�only�in�his�capacity�as�a�lawyer and not as an associate.

In that regard, the Court recalled that, in order to bring an action before it, parties other than the Member States, institutions of the European Union, States Parties to the European Economic Area (EEA) 16 other than the Member States and the European Free Trade Association (EFTA) Surveillance Authority referred to in that agreement may not act themselves, but must use the services of a third party who must be authorised to practise before a court of a Member State or of a State Party to the EEA Agreement. The Court recalled that, according to the case-law of�the�Court�of�Justice,�the�essence�of�that�requirement�of�representation�by�a�third�party�is,�first,�to�prevent�private parties from acting on their own behalf before the Courts without using an intermediary and, second, to ensure�that�legal�persons�are�defended�by�a�representative�who�is�sufficiently�distant�from�the�legal�person�which�he represents.

In the light of those criteria, the Court held that the personal connection which the applicant’s lawyer had with the applicant and with the case at the time when proceedings were brought, in particular the fact that he had acquired 10% of the applicant’s capital and had since then been one of the applicant’s only two associates, were of�such�a�nature�that�they�placed�him�at�risk�of�not�being�able�to�fulfil�his�vital�role�of�assisting�in�the�administration�of justice in the most appropriate manner. According to the Court, the applicant and its lawyer had provided no material, notably in response to the Commission’s plea alleging an absolute bar to proceedings, which allowed the existence of such a risk to be discounted in the circumstances of the case.

15/ �Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1).

16/ �Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3).




The Court noted that the applicant’s lawyer had personal connections to the applicant and to the case at the time�when�the�action�was�brought,�which�implied�that�he�was�not�sufficiently�distant�from�the�applicant�to�be�able to represent it in full independence, within the meaning of the case-law of the Court of Justice, and it dismissed the action as inadmissible.

II. INSTITUTIONAL LAW

In the case that gave rise to the judgment of 3 February 2017, Minority SafePack — one million signatures for diversity in Europe v Commission (T-646/13, EU:T:2017:59), an application had been made to the Court for annulment of the Commission decision refusing to register a proposed European citizens’ initiative (ECI) the purpose of which was to call on the European Union to improve the protection of persons belonging to national and linguistic minorities and to strengthen cultural and linguistic diversity in the Union. In the annex thereto, the proposal�mentioned�11�specific�areas�in�which�proposed�acts�should�be�developed�by�the�EU�institutions�and,�to that end, gave precise suggestions as to the types of act that should be adopted, the content of those acts and the corresponding legal bases in the FEU Treaty. In its decision, the Commission considered that some of the acts requested could, taken individually, fall within the framework of the powers under which it could submit a proposal for a legal act of the European Union, but then concluded that registration of the proposal in its entirety must be refused on the ground that Regulation (EU) No 211/2011 17 did not make provision for the partial registration of a proposed ECI.

In that regard, the Court recalled that a citizen who has submitted a proposed ECI must be placed in a position to be able to understand the reasons why it was not registered by the Commission. It is therefore incumbent on the Commission, when it receives such a proposal, to appraise it and also to specify the various reasons for the refusal�to�register�it,�given�the�effect�of�such�a�refusal�on�the�effective�exercise�of�citizens’�right�to�submit�a�proposed ECI. In the contested decision, the Commission had failed to identify in any way which of the 11 proposals for legal acts referred to in the annex to the proposed ECI manifestly did not, in its view, fall within the framework of the powers under which it is entitled to submit a proposal for a legal act of the European Union and had also failed to provide any reasons in support of that assessment, notwithstanding the precise suggestions provided by the organisers as to the type of act proposed and also the respective legal bases and the content of those acts. In those circumstances, the Commission had in any event not placed the organisers in a position to be able to identify those of the proposals set out in the annex to the proposed ECI that, according to the Commission, fell outside the framework of its powers, or to know the reasons that had led to that assessment. The organisers had therefore been prevented from challenging the merits of the Commission’s assessment, just as the Court was prevented from exercising its review of the legality of that assessment.

The�Court�concluded�that�the�contested�decision�was�vitiated�by�an�insufficient�statement�of�reasons�and�must�therefore be annulled and that it was not necessary to determine whether the Commission ought, in addition, to have stated the grounds on which it had based its interpretation that a proposed ECI cannot be registered if a part of the proposed measures do not fall within the framework of its powers.

In the case that gave rise to the judgment of 10 May 2017, Efler and Others v Commission (T-754/14, EU:T:2017:323), the Court was required to examine the lawfulness of the Commission decision refusing to register a proposed ECI entitled ‘Stop TTIP’, the purpose of which was to request the Commission to recommend that the Council cancel the mandate which it had granted to the Commission to negotiate the ‘Transatlantic Trade and Investment

17/ � Regulation (EU) No 211/2011 of the of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1).





Partnership’ 18 and, ultimately, to refrain from concluding the ‘Comprehensive Economic and Trade Agreement’. 19 Thus, the case raised the novel question whether a proposed ECI may relate to an act whereby the Council decides to withdraw from the Commission the mandate to negotiate the conclusion of an international agreement with a third country and an act whereby the Council decides not to authorise the signing of such an agreement or not to conclude it. In its decision, the Commission claimed that a proposed ECI could not relate to such acts. It argued, first,�that�an�act�for�the�opening�of�negotiations�with�a�view�to�concluding�an�international�agreement�is�preparatory�and�has�no�legal�effects�outside�the�institutions�and,�second,�that�the�legal�acts�whose�adoption�was�proposed�were not necessary ‘for the purpose of implementing the Treaties’.

The�Court�rejected�the�Commission’s�argument:�in�the�first�place,�it�considered�that�the�concept�of�a�legal�act,�for the purposes of Article 11(4) TEU, Article 2(1) and Article 4(2)(b) of Regulation No 211/2011, cannot, in the absence�of�any�indication�to�the�contrary,�be�understood�as�being�limited�only�to�definitive�European�Union�legal�acts�which�produce�legal�effects�vis-à-vis�third�parties.�In�fact,�according�to�the�Court,�neither�the�wording�of�the�provisions in question nor the objectives pursued by them justify in particular that a decision authorising the opening of negotiations with a view to concluding an international agreement, taken under Article 207(3) and (4) TFEU and Article 218 TFEU and which clearly constitutes a decision for the purposes of the fourth paragraph of Article 288 TFEU, be excluded from the concept of a legal act for the purposes of an ECI. On the contrary, the Court�observed�that�the�principle�of�democracy,�and�also�the�objective�specifically�pursued�by�the�ECI�mechanism,�which consists in improving the democratic functioning of the European Union, require an interpretation of the concept of legal act that covers legal acts such as a decision to open negotiations with a view to concluding an international agreement which manifestly seeks to modify the legal order of the European Union. According to the�Court,�the�argument�that�the�Council�and�the�Commission�have�sufficient�indirect�democratic�legitimacy�to�adopt�legal�acts�which�do�not�produce�legal�effects�vis-à-vis�third�parties�would�have�the�consequence�of�limiting�considerably recourse to the ECI mechanism as an instrument of European Union citizen participation in the European Union’s normative activity as carried out through the conclusion of international agreements. Furthermore, according to the Court, a decision to withdraw authorisation to open negotiations with a view to concluding an international�agreement,�in�so�far�as�it�brings�those�negotiations�to�a�close,�cannot�be�classified�as�a�preparatory�act�but�is,�instead,�definitive.

In the second place, the Court considered that there is nothing in the provisions on the ECI to indicate that citizen participation could not be proposed in order to prevent the adoption of a legal act. Indeed, although, according to Article 11(4) TEU and Article 2(1) of Regulation No 211/2011, the proposed legal act must contribute to the implementation of the Treaties, that is the case for acts whose object is to prevent the conclusion of the TTIP and the CETA, which seek to modify the legal order of the European Union.

In that regard, the Court observed that the objective of participation in the democratic life of the European Union pursued by the ECI mechanism manifestly includes the power to request an amendment of legal acts in force or their�annulment,�in�whole�or�in�part.�Accordingly,�there�is�no�justification�for�excluding�from�democratic�debate�legal acts seeking the withdrawal of a decision authorising the opening of negotiations with a view to concluding an international agreement and acts whose object is to prevent the signing and conclusion of such an agreement. Contrary�to�the�Commission’s�contention,�those�acts�clearly�produce�independent�legal�effects�by�preventing,�where�relevant,�an�announced�modification�of�European�Union�law.�There�is�nothing�to�justify�the�authors�of�an�ECI proposal being required to await the conclusion of an agreement and then being able to contest only the appropriateness of that agreement.

18/ �By decision of 14 June 2013, the Council authorised the Commission to open negotiations with the United States of America with a view to concluding a free-trade agreement, called the ‘Transatlantic Trade and Investment Partnership (TTIP)’.

19/ �By decision of 27 April 2009, the Council authorised the Commission to open negotiations with Canada with a view to concluding a free-trade agreement, called the ‘Comprehensive Economic and Trade Agreement (CETA)’.



Furthermore, according to the Court, far from amounting to an interference in an ongoing legislative procedure, such�a�proposed�ECI�constitutes�an�expression�of�the�effective�participation�of�citizens�of�the�European�Union�in the democratic life of the European Union, without undermining the institutional balance intended by the Treaties.

In the case that gave rise to the judgment of 20 November 2017, Voigt v Parliament (T-618/15, EU:T:2017:821), an action had been brought before the Court against two decisions whereby the European Parliament had refused to make a room available to the applicant for the purpose of holding a press conference and also to give Russian nationals access to its premises. The applicant, who had been elected to the Parliament on the list of a German party, had participated in a political forum in Saint Petersburg (Russia). As a further part of that forum, the applicant had wished to organise a press conference and a working meeting in the Parliament’s premises, in the presence, in particular, in the case of the working meeting, of members and a sympathiser of the Russian party Rodina. In the meantime, the Parliament had adopted Resolution 2015/2001(INI). 20

Examining,�first�of�all,�the�admissibility�of�the�plea�alleging�infringement�of�Article�21�of�the�Charter�of�Fundamental�Rights of the European Union, in that the refusal to allow the Russian guests access to the Parliament was vitiated by discrimination on grounds of their ethnic origin or nationality, the Court observed that an applicant is not entitled to act in the interests of the law or of the institutions and may put forward, in support of an action for annulment, only such claims as relate to him personally. However, that requirement cannot be understood as meaning that an action will be admissible before the EU judicature only if it is linked to the personal situation of the applicant alone. An applicant’s claims are admissible only if they are capable of justifying an annulment which would be of advantage to the applicant. In the present case, according to the Court, the alleged discrimination against the Russian guests on grounds of their nationality or ethnic origin might have also, hypothetically, adversely affected�the�applicant�inasmuch�as�he�had�been�the�instigator�of�their�invitation�and�was�prevented�from�holding�with them at the Parliament the working meeting he had organised.

Examining, next, the merits of that plea, the Court stated that, although nationality is a legal and political link between an individual and a sovereign State, the concept of ethnicity has its origin in the idea that societal groups share the sense of belonging to the same nation or sharing a common religious faith, language, cultural and traditional origin and background. As regards the prohibition on discrimination on the ground of ethnic origin, the applicant merely highlighted the Russian nationality of his guests and did not establish that the decision to refuse�his�Russian�guests�access�to�the�Parliament�had�been�adopted�on�the�ground�of�any�specific�ethnic�affiliation.�As�regards�the�prohibition�on�discrimination�on�the�ground�of�nationality,�the�Court�recalled�that,�under�the third paragraph of Article 6(1) TEU and Article 52(7) of the Charter of Fundamental Rights, the explanations relating to the Charter 21 are to be given due regard in its interpretation. According to those explanations, Article 21(2)�of�the�Charter�of�Fundamental�Rights�‘corresponds�to�the�first�paragraph�of�Article�18�[TFEU]�and�must�be�applied in compliance with that article’.

Consequently,�the�Court�considered,�in�the�light�of�the�first�paragraph�of�Article�18�TFEU�and�the�related�case-law,�that Article 21(2) of the Charter of Fundamental Rights concerns only situations that come within the scope of EU law in which a national of one Member State is treated in a discriminatory manner by comparison with nationals of another Member State solely on the basis of his nationality, and that article is therefore not applicable in the case�of�a�difference�in�treatment�between�nationals�of�the�Member�States�and�nationals�of�non-member�countries.�Accordingly, the applicant was not entitled to claim that there had been an infringement of Article 21(2) of the Charter of Fundamental Rights in respect of his Russian guests.

20/ �European Parliament resolution of 10 June 2015 on the state of EU-Russia relations (2015/2001(INI)) (OJ 2016 C 407, p. 35).

21/ �Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17).




Examining, last, a plea alleging misuse of powers, the Court held that the Parliament is not required to privilege, in its infrastructures, the political activities of a party from a non-member country and that, accordingly, it is not obliged to receive members or sympathisers of such a party in order to allow them to express their views in its premises. The overall scheme of the Treaties and the implementing texts, and also the need to safeguard the unfettered exercise of the powers conferred on the Parliament, entail that the Parliament is not the place where any and all members of the public may express themselves entirely as they wish.

III. COMPETITION RULES APPLICABLE TO UNDERTAKINGS

1. DEVELOPMENTS IN THE AREA OF ARTICLES 101 AND 102 TFEU

In the case that gave rise to the judgment of 10 November 2017, Icap and Others v Commission (T-180/15, EU:T:2017:795), an action had been brought before the Court for annulment of the decision whereby the Commission had considered that the applicants had participated in six infringements of Article 101 TFEU concerning the manipulation�of�the�London�Interbank�Offered�Rate�(LIBOR,�the�interbank�rate�applied�in�London)�and�the�Tokyo�Interbank�Offered�Rate�(TIBOR,�the�interbank�rate�applied�in�Tokyo)�interbank�reference�rates�on�the�yen�interest�rate derivatives market, which had already been found by a decision in 2013. 22 The conduct of which the applicants were accused consisted in the ‘facilitation’ of six infringements, namely the ‘UBS/RBS 2007 infringement’, the ‘UBS/RBS 2008 infringement’, the ‘UBS/DB infringement’ the ‘Citi/RBS infringement’, the ‘Citi/DB infringement’ and the ‘Citi/UBS infringement’. In the 2013 decision, adopted pursuant to the settlement procedure provided for in Article 10a of Regulation (EC) No 773/2004, 23 as amended by Regulation (EC) No 622/2008, 24 Citigroup Inc., Citigroup Global Markets Japan Inc., Deutsche Bank Aktiengesellschaft, UBS AG, UBS Securities Japan and The Royal Bank of Scotland (RBS) had acknowledged their participation in the infringements at issue. The applicants had chosen not to participate in the settlement procedure. Consequently, the normal procedure had been applied to�them�and�a�fine�of�EUR�14�960�000�had�been�imposed�on�them.

Observing that the applicants’ liability had been established on the basis of their participation in the anticompetitive conduct�found�by�the�Commission,�which�it�had�classified�as�‘facilitation’,�the�Court�examined�first�of�all�whether�the applicants had intended to contribute by their own conduct to the common objectives pursued by all the participants�and�whether�they�were�aware�of�the�actual�conduct�planned�or�put�into�effect�by�other�undertakings�in pursuit of the same objectives, or might reasonably have foreseen it, and whether they were prepared to accept the risk. In that regard, the applicants maintained that the Commission had not proved to the requisite legal standard that they were aware of collusion between the banks concerned in connection with the ‘UBS/RBS 2007 infringement’, the ‘UBS/RBS 2008 infringement’, the ‘Citi/DB infringement’ and the ‘Citi/UBS infringement’. The Court upheld that argument, but only in respect of one of the infringements at issue (namely the ‘UBS/RBS 2008

22/ �Commission�Decision�C(2013)�8602�final�of�4�December�2013�relating�to�a�proceeding�under�Article�101�TFEU�and�Article�53�of�the�EEA�Agreement (Case AT.39861 — Yen Interest Rate Derivatives).

23/ �Commission�Regulation�(EC)�No�773/2004�of�7�April�2004�relating�to�the�conduct�of�proceedings�by�the�Commission�pursuant�to�Articles�[101] and [102 TFEU] (OJ 2004 L 123, p. 18).

24/ �Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3).




infringement’). Finding that the Commission had not adduced evidence capable of showing that the applicants had been aware of or might reasonably have foreseen the role of RBS in the infringement, the Court annulled the contested decision in so far as the applicants’ participation in that infringement was concerned.

As regards the proof of the infringements and their duration, the burden of which was borne by the Commission, the Court observed that, in circumstances where the pursuit of an infringement or concerted practices required special positive measures, the Commission could not assume that the cartel had been pursued in the absence of evidence that those measures had been adopted. It followed that proof of the applicants’ participation in single and continuous infringements and, accordingly, their being held liable for the whole of the infringement periods required the Commission to produce evidence of positive measures adopted by the applicants, if not on a daily basis,�at�least�on�a�basis�that�was�sufficiently�limited�in�time.�Otherwise,�the�Commission�had�to�find�the�existence�of single and repeated infringements and not to include in the infringement periods found against the applicants the intervals in respect of which it did not possess evidence of their participation. In that regard, the Court considered that the evidence put forward by the Commission did not justify the whole infringement period found in respect of the ‘UBS/RBS 2007 infringement’, the ‘Citi/RBS infringement’ and the ‘Citi/DB and Citi/UBS’ infringement’.

In addition, the Court was required to adjudicate on the applicants’ complaint that the contested decision, adopted in 2015, should be annulled for breach of the principle of the presumption of innocence, owing to the references to their conduct in the 2013 decision. On that point, the Court emphasised that, although that principle is enshrined in Article 48 of the Charter of Fundamental Rights, which pursuant to Article 6 TEU is to have the same legal value as the Treaties, the origin of the settlement procedure is to be found in a regulation adopted by the Commission alone, on the basis of Article 33 of Regulation (EC) No 1/2003, 25 namely Regulation No 622/2008, and that the procedure is optional for both the Commission and the undertakings concerned. Accordingly, the requirements relating to compliance with the principle of presumption of innocence cannot be altered by considerations linked to�the�safeguarding�of�the�objectives�of�rapidity�and�efficiency�of�the�settlement�procedure,�however�laudable�those objectives may be. On the contrary, the Commission must apply its settlement procedure in a manner that is compatible with the requirements of Article 48 of the Charter of Fundamental Rights. Thus, the implementation of such a ‘hybrid’ settlement procedure must be carried out in compliance with the presumption of innocence of the undertaking which has decided not to enter into a settlement. Accordingly, in circumstances where the Commission considers that it is not in a position to determine the liability of the undertakings participating in the settlement without also taking a view on the participation in the infringement of the undertaking which has decided not to enter into a settlement, it is for the Commission to take the necessary measures — which may include adopting on the same date the decisions relating to all the undertakings involved in the cartel — that will enable that presumption of innocence to be safeguarded. The Court concluded that the Commission had infringed the applicants’ presumption of innocence when adopting the 2013 decision. However, it made clear that this infringement could not have a direct impact on the legality of the contested decision, in view of the separate and independent nature of the proceedings that had given rise to those two decisions.

Last, the Court observed that the Commission had not explained in the contested decision the methodology which�it�had�applied�in�order�to�determine�the�amounts�of�the�fines�imposed.�The�Court�therefore�annulled�the�part�of�the�contested�decision�setting�the�fines,�on�the�ground�of�insufficient�reasoning.

In the case that gave rise to the judgment of 16 May 2017, Agria Polska and Others v Commission (T-480/15, under appeal, 26 EU:T:2017:339), an action had been brought before the Court for annulment of the Commission decision rejecting the complaint lodged by the applicants, companies active in the plant protection products


26/ � Case C-373/17 P, Agria Polska and Others v Commission.




parallel trade sector, concerning infringements of Article 101 TFEU and/or Article 102 TFEU alleged to have been committed by 13 undertakings producing and distributing such products, with the assistance of or through the intermediary�of�four�professional�organisations�and�a�law�firm.�Before�the�Commission,�the�applicants�had�claimed�that the entities referred to in the complaint had engaged vis-à-vis the applicants in practices that infringed EU competition law. Such practices had essentially taken the form of an agreement and/or concerted practices between those entities and had consisted of abusive complaints brought in a coordinated manner before the Austrian and Polish administrative and criminal authorities.

In that regard, the Court observed that Article 101 TFEU does strictly preclude any direct or indirect contact between�economic�operators�the�object�or�effect�of�which�is�either�to�influence�the�conduct�on�the�market�or�an�actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market. However, economic operators retain the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors. Thus, undertakings may, in particular, act in the defence of their legitimate interests in the event of infringement by their competitors of the applicable provisions, such as, in the present case, the regulations relating to trade in plant protection products. Therefore, the Commission had not made a manifest error of assessment in considering, in the contested decision, that the entities referred to in the complaint had been entitled to inform the national authorities of alleged infringements by the applicants of the applicable rules and, where appropriate, to cooperate with those authorities in the context of the inspections which they carried out.

In�that�context,�the�Court�found�that�the�decisions�to�conduct�off-site�and�on-site�inspections�and�to�institute�administrative and criminal proceedings against the applicants were attributable to the national authorities, which act in the public interest and whose decisions fall, as such, within their discretion. The Court considered that the conduct and decisions of the authorities of the Member States, in particular their consultations with a view�to�fulfilling�their�duties�of�monitoring�compliance,�fell�outside�the�scope�of�Articles�101�and�102�TFEU,�since�those articles are intended to govern the conduct of undertakings only. The Court also ruled out the possibility that the lodging of complaints by the applicants’ competitors might fall within the concept of ‘abuse of regulatory procedures’ or of ‘vexatious action’ within the meaning of the judgments in ITT Promedia v Commission 27 and AstraZeneca v Commission, 28 in particular because of the discretion of the national authorities in their decisions to carry out inspections and/or impose penalties following those complaints.

Last, the Court stated that to accept the applicants’ view that the Commission should systematically open an investigation where a complaint, similar to that lodged before it, has already been rejected, possibly erroneously, by a national competition authority on a ground connected with the limitation period, would not be compatible with the objective of Article 13(2) of Regulation No 1/2003, which was to establish, with a view to ensuring effectiveness,�an�optimal�allocation�of�resources�within�the�European�competition�network.�In�addition,�the�Court�recalled that the procedure provided for in Article 7 of Regulation No 1/2003 does not extend to the making of findings�of�possible�breaches�by�the�authorities,�including�the�judicial�authorities,�of�the�Member�States,�since�that�falls�under�the�procedure�for�failing�to�fulfil�obligations�provided�for�in�Article�258�TFEU.�

27/ � Judgment of 17 July 1998, T-111/96, EU:T:1998:183.

28/ �Judgment�of�1�July�2010,�T-321/05,�EU:T:2010:266.





2. DEVELOPMENTS IN THE AREA OF MERGERS

In the case that gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T-194/13, under appeal, 29 EU:T:2017:144), an action had been brought before the Court against the decision whereby the Commission had declared incompatible with the internal market and the EEA Agreement, pursuant to Article 8(3) of Regulation No 139/2004, 30 the merger between United Parcel Service, Inc. (UPS) and TNT Express NV (TNT), two companies present�on�the�international�express�small�package�delivery�markets.�That�decision�was�based�on�the�finding�that�the purchase of TNT by UPS would have resulted in a restriction of competition in 15 Member States of the EEA for the express distribution of small packages to other European countries. In those States, the acquisition would have�reduced�to�three,�or�even�only�two,�the�number�of�significant�players�on�that�market,�sometimes�leaving�DHL as the only alternative solution to UPS. According to the Commission, the merger would have therefore been harmful to customers owing to the likely increases in prices that it would have entailed.

In response to the plea put forward by the applicant, UPS, alleging infringement of its rights of defence, the Court observed that observance of those rights and, more particularly, the right to a fair hearing require that the undertaking�concerned�must�have�been�afforded�the�opportunity,�during�the�administrative�procedure,�to�make�known its view on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its assertions. In that regard, the Court observed that the econometric analysis used�by�the�Commission�in�its�decision�had�been�based�on�a�different�model�from�the�analysis�that�had�been�the subject of an exchange of views and arguments during the administrative procedure. In fact, the Commission had made appreciable changes to the analyses previously discussed with the applicant. In the light of those changes,�the�Court�considered�that�the�Commission�had�been�required�to�communicate�the�final�econometric�analysis model to the applicant before adopting the contested decision. In failing to do so, the Commission had infringed the applicant’s rights of defence. Taking the view that, in the absence of that procedural irregularity, the applicant might have had even a slight chance of being in a better position to defend itself if it had had available, before�the�adoption�of�the�contested�decision,�the�final�version�of�the�econometric�analysis�chosen�by�the�Commission, the Court annulled the contested decision in its entirety without examining the other pleas put forward by the applicant.

In the case that gave rise to the judgment of 26 October 2017, KPN v Commission (T-394/15, not published, EU:T:2017:756), the Court was required to adjudicate on an application for annulment of the Commission decision declaring compatible with the internal market the concentration involving the acquisition by the international cable operator Liberty Global plc of sole control over the undertaking Ziggo NV. In support of its action, the applicant relied, in particular, on a breach of the duty to state reasons in that the Commission had failed to give its�reasons�for�not�analysing�the�possible�vertical�anticompetitive�effects�of�the�concentration�on�the�market�for�premium pay TV sports channels.

On�that�point,�the�Court�observed�that,�in�the�contested�decision,�the�Commission�had�not�analysed�the�effects�of the transaction on the possible market for the wholesale supply and acquisition of premium pay TV sports channels, in which the only two channels present would be Sport1, which was owned by Liberty Global, and Fox Sports, which was owned by a third party. Although the contested decision did refer to Sport1 and Fox Sports on�a�number�of�occasions,�it�did�not�contain�any�analysis�regarding�the�vertical�effects�that�would�result�from�the�proposed�concentration�if�the�relevant�product�market�were�defined�as�the�market�for�the�wholesale�supply�and�acquisition of premium pay TV sports channels. In that regard, the Court observed that the Commission had

29/ � Case C-265/17 P, Commission v United Parcel Service.

30/ �Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), as implemented by Regulation (EC) No 802/2004 of 7 April 2004 (OJ 2004 L 133, p. 1).





acknowledged that the market for the wholesale supply and acquisition of pay TV channels could be further segmented�according�to�whether�they�consisted�of�film�or�sports�channels.�The�Commission�had�further�stated�in the contested decision that that question could be ‘left open as the assessment of the proposed transaction would�remain�the�same’.�It�followed�that�the�Commission�had�left�open�the�precise�definition�of�the�relevant�product market because, even if there were additional segmentation, the concentration could be declared compatible with the internal market because there were no competition concerns.

According�to�the�Court,�that�approach�of�leaving�open�the�precise�definition�of�the�relevant�market�required�the�Commission�to�explain,�at�least�briefly,�why�the�proposed�transaction,�including�the�vertical�effects�on�the�possible�market for the wholesale supply and acquisition of premium pay TV sports channels, did not raise any competition concerns, in such a way as to enable the persons concerned to ascertain the reasons for that view and to enable the Court to exercise its power of review with regard to the Commission’s assessment. As the contested decision contained no express reasoning in that regard, the Court concluded that it did not satisfy the requirements of Article 296 TFEU relating to the statement of reasons.

In the case that gave rise to the judgment of 26 October 2017, Marine Harvest v Commission (T-704/14, under appeal, 31 EU:T:2017:753), the Court was required to examine the lawfulness of the decision whereby the Commission had�imposed�a�fine�on�the�applicant�for�putting�into�effect�a�concentration�in�breach�of�Article�4(1)�and�Article�7(1) of Regulation No 139/2004.

At issue was the acquisition by the applicant of control of Morpol ASA, concluded on 18 December 2012. On 21 December 2012 the applicant had requested the Commission to allocate a case team and had informed the Commission that it would not exercise its voting rights pending the decision of the Commission. On 15 January 2013�the�applicant�had�submitted�a�mandatory�public�offer�for�the�remaining�shares�in�Morpol.�Following�the�notification�of�the�transaction�on�9�August�2013,�the�Commission�cleared�the�transaction�on�30�September�2013,�subject to conditions. On 23 July 2014 the Commission adopted the contested decision, in which it found that the applicant had implemented a concentration of a Community dimension in the period from 18 December 2012 to�30�September�2013�before�that�concentration�had�been�notified�and�declared�compatible�with�the�internal�market, in breach of the articles referred to above. This case gave the Court the opportunity to clarify the interpretation of the rules relating to suspension of a concentration pursuant to Article 7 of Regulation No 139/2004, to the concept of single concentration, to the principle ne bis in idem and to the rules governing concurrent�offences.

As�regards,�first�of�all,�the�interpretation�of�Article�7�of�Regulation�No�139/2004,�the�Court�began�by�observing�that, in so far as the applicant had acquired control of Morpol by means of the December 2012 acquisition, it ought,�in�principle,�pursuant�to�the�first�subparagraph�of�Article�4(1)�and�Article�7(1)�of�Regulation�No�139/2004,�to�have�notified�that�concentration�to�the�Commission�before�implementing�it�and�not�to�have�implemented�it�until the Commission had declared it to be compatible with the internal market. Although the applicant claimed that the exception provided for in Article 7(2) of Regulation No 139/2004 was applicable, the Court considered that�that�was�not�the�position.�On�that�point,�the�Court�noted�that,�although�the�first�situation�in�Article�7(2)�of�Regulation No 139/2004, relating to a pubic bid, permits, in certain circumstances, the implementation of a public bid�before�notification�and�authorisation,�even�if�such�implementation�constitutes�a�concentration�with�a�Community dimension, according to its wording, that provision does not however permit the implementation of a private acquisition. In the present case, the Commission had not found that the applicant had infringed Article 7(1) of Regulation No 139/2004 by implementing the public bid. It had found that the applicant had infringed Article 7(1) and Article 4(1) of Regulation No 139/2004 by the December 2012 acquisition, which had preceded that�public�bid.�Consequently,�according�to�its�wording,�the�first�situation�in�Article�7(2)�of�Regulation�No�139/2004�

31/ �Case�C-10/18�P,�Marine Harvest v Commission.




was not applicable in the present case. As for the second situation envisaged in Article 7(2) of that regulation, namely the implementation of a series of transactions in securities by which control is acquired from various sellers, the Court found that, in this case, the applicant had acquired control of Morpol from a single seller by means of a single transaction in securities, namely the December 2012 acquisition. Control was not, therefore, acquired either from various sellers or by means of a series of transactions. It followed that, according to its wording, the second situation envisaged in Article 7(2) Regulation No 139/2004 did not apply either.

As regards, next, the concept of a single concentration, the Court considered that it is not intended to apply in a situation in which sole de facto control of the only target company is acquired from one seller by means of a single�initial�private�transaction,�even�where�that�transaction�is�followed�by�a�mandatory�public�offer.�If�the�applicant’s reasoning that acquisition of control by means of a single private transaction followed by a mandatory public�offer�constituted�a�single�concentration�were�accepted,�the�effect�would�be�to�overextend�the�scope�of�application of the exception provided for in Article 7(2) of Regulation No 139/2004. The Court emphasised, moreover, that the mere fact that the Commission can impose severe penalties for infringement of a provision of competition law does not call in question the fact that provisions derogating therefrom must be strictly interpreted.�Even�supposing�that�the�fines�imposed�under�Article�14�of�Regulation�No�139/2004�were�of�a�criminal�law nature, it could not be concluded in the present case that the Commission applied criminal law extensively to the accused’s detriment. The Commission merely had refused to extend the scope of application of the exception provided for in Article 7(2) of Regulation No 139/2004 beyond its wording.

As regards, last, the principle ne bis in idem�and�the�rules�governing�concurrent�offences,�the�Court�stated�that�the�effect�of�an�undertaking�infringing�the�obligation�under�Article�4(1)�of�Regulation�No�139/2004�to�notify�a�concentration before its implementation is to put the undertaking in breach of the prohibition against implementing a�concentration�before�it�has�been�notified�and�authorised,�laid�down�in�Article�7(1)�of�that�regulation.�However,�the principle ne bis in idem did not apply in the present case, as the penalties had been imposed by the same authority in a single decision. In that context, the Court stated that where the same conduct infringes several provisions�punishable�by�fines,�the�question�whether�several�fines�may�be�imposed�in�a�single�decision�falls�not�within the scope of the principle ne bis in idem�but�within�the�scope�of�the�principles�governing�concurrent�offences.�In that regard, whereas the applicant claimed that, where one act appears to be caught by two statutory provisions, the ‘primarily applicable’ provision excludes all the other provisions, the Court observed that the legislature had not�defined�one�offence�as�being�more�serious�than�the�other,�both�of�them�being�subject�to�the�same�cap�under�Article 14(2)(a) and (b) of Regulation No 139/2004. It was not appropriate, therefore, to regard one of those provisions as being ‘primarily applicable’. Thus, the Court concluded that the Commission had been correct to penalise the applicant for infringement of both provisions.

IV. STATE AID

1. ADMISSIBILITY

In the cases that gave rise to the judgments of 6 April 2017, Regione autonoma della Sardegna v Commission (T-219/14, EU:T:2017:266), and of 6 April 2017, Saremar v Commission (T-220/14, EU:T:2017:267), two actions had been brought before the Court for annulment of the decision by which the Commission had declared that certain aid measures implemented by the Autonomous Region of Sardinia in favour of a company providing a public maritime cabotage service were incompatible with the internal market and had ordered recovery of the aid. The Commission maintained that, because the company in question was being liquidated, it and the Autonomous Region of Sardinia had lost their interest in bringing proceedings.





As�regards,�first�of�all,�the�action�brought�by�the�company�in�question�in�the�case�that�gave�rise�to�the�judgment�of 6 April 2017, Saremar v Commission (T-220/14, EU:T:2017:267), the Court began, in view of the fact that the company’s loss of capacity to be a party to legal proceedings would make its interest in bringing proceedings pointless, by ascertaining whether it had not lost that capacity in the course of the proceedings. In that regard, the Court considered that, since under national law the applicant retained the right to bring legal proceedings in its own name and to be a party to legal proceedings in order to protect its assets, it had not lost its capacity to be a party to legal proceedings in the course of the proceedings, in spite of having been placed in liquidation. Furthermore, the Court stated that the contested decision, in that it had declared the aid granted to the applicant incompatible�and�illegal�and�had�ordered�its�recovery,�had�adversely�affected�the�applicant�on�the�date�on�which�it�brought�the�action.�According�to�the�Court,�the�contested�decision�had�not�ceased�to�produce�effects�vis-à-vis�the applicant because the applicant had been placed in liquidation. First, the Autonomous Region of Sardinia was still not allowed to disburse to the applicant the part of the aid at issue which had not yet been implemented. Second, as regards the part of the disputed aid that had already been paid, the applicant’s liquidation did not affect�the�principle�that�that�aid�was�to�be�recovered,�which�might,�if�appropriate,�be�achieved�by�entry�in�the�schedule of the company’s liabilities. The Court thus concluded that the applicant had not lost its interest in bringing proceedings in the course of the proceedings.

As regards, next, the action brought by the Autonomous Region of Sardinia in the case that gave rise to the judgment of 6 April 2017, Regione autonoma della Sardegna v Commission (T-219/14, EU:T:2017:266), the Court held that the Autonomous Region had locus standi�since,�first,�the�contested�decision�was�liable�to�affect�directly�its rights and obligations in relation to the disputed aid and since, second, the aid was granted on its own initiative and in the exercise of its own powers. As regards the Autonomous Region of Sardinia’s interest in bringing an action, the Court, after observing that it was not for it to rule on the distribution of powers and respective obligations of the various national entities, stated that, on the date on which the action was brought, the applicant had been able to derive an advantage from seeing the contested decision annulled, which would necessarily have brought about a change in its legal situation. According to the Court, the fact that the company concerned was placed in liquidation in the course of the proceedings had no bearing on that conclusion and, consequently, did not cause the applicant to lose its interest in bringing an action.

2. ADMINISTRATIVE PROCEDURE

In the case that gave rise to the judgment of 17 November 2017, Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo v Commission (T-263/15, EU:T:2017:820), an action had been brought before the Court for annulment of a number of provisions of a Commission decision declaring incompatible with the internal market State aid implemented by the Republic of Poland in the form of public funding by the municipalities of Gdynia (Poland) and Kosakowo (Poland) in favour of Gdynia-Kosakowo Airport. The funding consisted of capital injections from the municipalities of Gdynia and Kosakowo, which were intended to cover both the investment costs (investment aid) and the operating costs of the airport during the initial phase of its operation (operating aid). The contested decision replaced an earlier decision in which the Commission had already arrived at the same conclusion, in so far as, during the interim relief proceedings initiated before the Court in the meantime, it had become apparent that the State aid declared to be incompatible with the internal market consisted of certain investments which, according to decision to initiate the procedure, were not State aid since they related to a task in the public interest. The�Commission�considered�that�it�was�not�necessary�to�initiate�a�new�investigation�procedure�since�the�file�contained all the material necessary for the assessment of the measure at issue.

In that regard, the Court began by recalling that it follows from Article 108(2) TFEU and Article 1(h) of Regulation No 659/1999 that, during the investigation phase, the Commission must give notice to the parties concerned, including the undertaking or undertakings concerned and the infra-State entity that granted the aid, to submit their comments. That rule is in the nature of an essential procedural requirement. In addition, the decision to






initiate�the�formal�investigation�phase�must�put�the�parties�concerned�in�a�position�to�participate�effectively�in�the formal investigation procedure, during which they will be able put forward their arguments. It is necessary, in�particular,�for�the�Commission�to�define�sufficiently�the�framework�of�its�investigation�so�as�not�to�render�meaningless the right of parties concerned to submit their comments. In this case, both in the decision to initiate the procedure and in the initial decision, the Commission had assessed the compatibility of the aid in the light of the Guidelines on national regional aid 32 and in the context of Article 107(3)(a) TFEU.

The Court observed that in the contested decision the Commission had made a change in the legal regime as regards�the�analysis�of�the�compatibility�of�the�operating�aid.�More�specifically,�the�Commission�had�no�longer�relied, as it had done in the decision to initiate the procedure and the initial decision, on the Guidelines on national regional aid in order to analyse whether the aid was compatible with the internal market, but had relied on the principles set out in the Guidelines on State aid to airports and airlines. 33 The Commission had also made a change in the derogation analysed in the light of Article 107(3) TFEU, which, in the contested decision, was within the scope of Article 107(3)(c) TFEU, whereas it had initially been within Article 107(3)(a) TFEU. Therefore, the Court concluded, the new legal regime applied by the Commission in the contested decision included substantial changes by comparison with the regime previously in force and taken into account in the decision to initiate the procedure and in the initial decision.

Furthermore,�the�Court�observed�that,�even�if�the�withdrawal�of�the�initial�decision�had�had�the�effect�of�leaving�the formal investigation procedure open, the interested parties had not been in a position to submit their comments. The Court emphasised that the right of the interested parties to be in a position to submit their comments is an essential procedural requirement and that an infringement of that right, as found in the present case, entailed the annulment of the vitiated measure, without it being necessary to establish the existence of an effect�on�the�party�alleging�such�an�infringement�or�that�the�outcome�of�the�administrative�procedure�might�have�been�different.�In�that�context,�the�Court�stated�that�the�effect�of�the�comments�which�the�interested�parties�would have been in a position to submit could not be prejudged. Last, the Court observed that, although the aid at�issue�was�composed,�in�fact,�of�two�types�of�funding,�namely�investment�aid�and�operating�aid,�those�different�types of funding had been analysed as a whole by the Commission for the purpose of determining, in particular, the�classification�as�State�aid.�In�those�circumstances,�it�was�not�possible�to�interpret�the�operative�part�of�the�contested decision as covering, in a manner that allowed them to be separated, on the one hand, the investment aid and, on the other, the operating aid.

3. SERVICES OF GENERAL ECONOMIC INTEREST

In the case that gave rise to the judgment of 1 March 2017, SNCM v Commission (T-454/13, EU:T:2017:134), the Court�adjudicated�on�the�lawfulness�of�the�decision�whereby�the�Commission�had�classified�as�State�aid�the�financial�compensation�paid�by�the�French�Republic�to�two�French�maritime�companies�in�respect�of�maritime�transport services provided between Marseilles (France) and Corsica (France) for the years 2007 to 2013 under a public service agreement, and declared incompatible with the internal market the compensation paid to one of�those�companies�in�respect�of�the�services�which�it�had�provided�during�peak�traffic�periods.�

First�of�all,�the�Court�observed�that,�in�order�for�public�service�compensation�to�escape�classification�as�State�aid, a number of cumulative criteria must, in accordance with the judgment in Altmark Trans and Regierungspräsidium

32/ �Guidelines�on�national�regional�aid�for�2007-2013�(OJ�2006�C�54,�p.�13).

33/ �Guidelines on State aid to airports and airlines (OJ 2014 C 99, p. 3).




Magdeburg, 34�be�satisfied,�including�the�criterion�that�the�recipient�undertaking�must�actually�have�public�service�obligations to discharge. As regards that criterion, the Court emphasised that Member States enjoy wide discretion in�defining�what�they�regard�as�a�service�of�general�economic�interest�(SEIG)�and,�consequently,�the�definition�of�those services by a Member State can be called in question by the Commission only in the event of manifest error.�In�that�regard,�the�Court�made�clear,�however,�that�the�Member�States’�power�to�define�SGEIs�is�not�unlimited�and may not be exercised arbitrarily for the sole purpose of allowing a particular sector to circumvent the application�of�the�competition�rules.�In�particular,�where�there�are�specific�rules�of�EU�law�that�circumscribe�the�definition�of�the�content�and�scope�of�the�SGEI,�they�bind�the�Member�States’�discretion.�In�the�present�case�such�rules existed, namely the provisions of Regulation (EEC) No 3577/92. 35 Thus, the Court considered that the Commission’s submission that the French authorities’ discretion was limited by the provisions of that regulation must be upheld.

Furthermore, according to the Court, the reasoning adopted by the Court of Justice in the judgment in Analir and Others, 36 which was based on an interpretation of Regulation No 3577/92 in accordance with its fundamental objective, namely to ensure the freedom to provide maritime cabotage services and, consequently, to accept restrictions of that freedom only under very strict conditions, was fully transposable to the present case. It followed that, in circumstances such as those at issue, the national authorities cannot dispense with the requirement to demonstrate the existence of a shortage of private initiative, since, as is clear from that judgment, it is on the basis�of�such�a�finding�of�a�shortage�of�private�initiative�that�the�real�public�service�need�is�determined.�

V. INTELLECTUAL PROPERTY

1. COMPOSITION OF THE BOARDS OF APPEAL AFTER REFERRAL

In the case that gave rise to the judgment of 16 February 2017, Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators) (T-828/14 and T-829/14, EU:T:2017:87), the Court was required to examine the compatibility of Article 1(d) of Regulation (EC) No 216/96 37 with the obligation of impartiality of the administration within the meaning of Article 41 of the Charter of Fundamental Rights in that that provision does not provide for the obligation to change the composition of the Board of Appeal when the case is referred back to it following annulment of its decision. 38

The Court noted that Article 1(d) of Regulation No 216/96 provides that, if the measures necessary to comply with a judgment of the Court annulling all or part of a decision of a Board of Appeal or of the Grand Board include re-examination by the Boards of Appeal of the case which was the subject of that decision, the Presidium of the Boards of Appeal is to decide if the case is to be referred to the Board which adopted that decision, or to another

34/ � Judgment of 24 July 2003, C-280/00, EU:C:2003:415.

35/ �Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7).

36/ �Judgment�of�20�February�2001,�C-205/99,�EU:C:2001:107.

37/ �Commission�Regulation�(EC)�No�216/96�of�5�February�1996�laying�down�the�rules�of�procedure�of�the�Boards�of�Appeal�of�the�Office�for�Harmonization in the Internal Market (Trade Marks and Designs) (OJ 1996 L 28, p. 11).

38/ �See also, below, the discussion of this judgment under ‘3 Designs’.






Board, or to the Grand Board. If the case is referred to another Board, that Board is not to comprise members who were party to the initial decision. This provision is not to apply if the case is referred to the Grand Board.

According to the Court, there is nothing in that wording to indicate that, when the case is referred back to the Board of Appeal which previously adopted the annulled decision, there is an obligation for the Presidium to structure the Board of Appeal so as to include none of the members who took part in the previous decision. In that�regard,�proceedings�before�the�Boards�of�Appeal�of�the�European�Union�Intellectual�Property�Office�(EUIPO)�are administrative and not judicial in nature. The Court observed that it had already been held that there is no rule�of�law�or�principle�which�prevents�an�administration�from�entrusting�to�the�same�officials�re-examination�of�a case in compliance with a judgment annulling a decision, and that it cannot be stated as a general rule resulting from the obligation to be impartial that an administrative or judicial authority is bound to send the case back to a�different�authority�or�to�a�differently�composed�branch�of�that�authority.

Accordingly, the referral by the Presidium pursuant to Article 1(d) of Regulation No 216/96 back to the same Board of�Appeal�that�ruled�on�it�initially,�with�no�requirement�that�that�Board�of�Appeal�have�a�different�composition,�does not infringe the administration’s obligation of impartiality under Article 41(1) of the Charter of Fundamental Rights.

2. EUROPEAN UNION TRADE MARK

a. Extent and nature of review by the Boards of Appeal

In the case that gave rise to the judgment of 6 April 2017, Nanu-Nana Joachim Hoepp v EUIPO — Fink (NANA FINK) (T-39/16, EU:T:2017:263), the Court was required to adjudicate on the legality of the decision of the First Board of Appeal of EUIPO dismissing the applicant’s appeal against the decision whereby the Opposition Division had only partially upheld its opposition request. In support of its action, the applicant claimed that the Board of Appeal had failed to rule on some of the goods in respect of which the opposition had been rejected. In the applicant’s submission, that should entail annulment of the contested decision. This case gave the Court, in particular, the opportunity to address the consequences of the Board of Appeal’s failure to rule on the entirety of the action before it.

The Court observed that the appeal brought by the applicant before the Board of Appeal concerned the Opposition Division’s decision as a whole, in so far as the opposition had been rejected, and considered that, since the Board of Appeal had failed to rule on the appeal before it inasmuch as the appeal related to the rejection of the opposition with regard to ‘precious metals and their alloys’, it breached the obligation, stemming from Regulation (EC) No 207/2009 39 (replaced by Regulation (EU) 2017/1001), 40�in�particular�the�first�sentence�of�Article�64(1)�of�Regulation�No�207/2009�(now�the�first�sentence�of�Article�71(1)�of�Regulation�2017/1001),�to�decide�on�the�appeal�before it. The Court observed that that obligation must be understood to mean that the Board of Appeal is required to rule on each of the heads of claim before it in its entirety, either by upholding it, rejecting it as inadmissible�or�rejecting�it�on�substantive�grounds.�Since�failure�to�meet�that�obligation�may�affect�the�content�

39/ � Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

40/ �Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).




of a decision of the Board of Appeal, it constitutes an essential procedural requirement, infringement of which can be raised by the Court of its own motion.

In the case that gave rise to the judgment of 21 June 2017, GP Joule PV v EUIPO — Green Power Technologies (GPTech) (T-235/16, EU:T:2017:413), the Court was led to recall the extent of the discretion of the Boards of Appeal of EUIPO to take into account evidence in support of an opposition that was not presented within the time limits prescribed for that purpose. The applicant took issue with the Board of Appeal for not having taken into account the�evidence,�presented�for�the�first�time�before�the�Board�of�Appeal,�that�the�applicant�was�the�licensee�of�the�two earlier marks on which the opposition had been based and for having thus upheld the decision of the Opposition Division rejecting the opposition as unfounded on the basis of Rule 20(1) of Regulation (EC) No 2868/95 41 (now Article 8(1) and Article 7 of Delegated Regulation (EU) 2017/1430 42) as the applicant had failed to prove in due�time�that�it�was�entitled�to�file�that�opposition.

The Court stated that Regulation No 207/2009 expressly provides that the Board of Appeal, when examining an appeal directed against a decision of the Opposition Division, enjoys the discretion deriving from the third subparagraph of Rule 50(1) of Regulation No 2868/95 and Article 76(2) of Regulation No 207/2009 (now Article 95(2) of Regulation 2017/1001) to decide whether or not to take into account additional or supplementary facts and�evidence�which�were�not�presented�within�the�time�limits�set�or�specified�by�the�Opposition�Division.�However,�the Court made clear that Rule 50 of Regulation No 2868/95 cannot be interpreted as meaning that it extends the discretion of the Boards of Appeal to new evidence, but only to evidence ‘additional’ or ‘supplementary’ to relevant evidence which was lodged within the time limit set.

In�this�case,�since�no�evidence�of�the�applicant’s�entitlement�to�file�the�notice�of�opposition�had�been�produced�before�the�expiry�of�the�time�limit�set�by�EUIPO,�such�evidence,�presented�for�the�first�time�before�the�Board�of�Appeal, could not be characterised as ‘additional’ or ‘supplementary’ within the meaning of the third subparagraph of Rule 50(1) of Regulation No 2868/95 and Article 76(2) of Regulation No 207/2009. Furthermore, even on the assumption�that�the�evidence�adduced�by�the�applicant�for�the�first�time�before�the�Board�of�Appeal�might�be�characterised as ‘additional’ or ‘supplementary’ evidence, the Board of Appeal had nonetheless correctly exercised its discretion under Article 76(2) of Regulation No 207/2009. Thus, it had been entitled to refuse to take such evidence, presented after the expiry of the time limit set for that purpose by the Opposition Division, into account on the ground that the circumstances in which the applicant had presented that evidence out of time did not justify�it,�without�examining�whether�such�evidence�was�relevant�and�sufficient.

The question of the discretion of the Boards of Appeal to take into consideration evidence in support of an opposition that was not presented within the prescribed time limit was also central to the case that gave rise to the judgment of 12 October 2017, Moravia Consulting v EUIPO — Citizen Systems Europe (SDC-554S) (T-316/16, EU:T:2017:717).�In�that�case,�the�applicant,�which�had�filed�an�opposition�against�an�application�to�register�a�trade�mark on the basis of an alleged earlier right existing in a Member State and arising from a non-registered word mark, had adduced no evidence relating to the applicable national legislation, as a result of which its opposition had been rejected by the Opposition Division. The applicant had then provided information relating to the national legislation relevant to the trade marks at the stage of the proceedings before the Board of Appeal.

In that regard, the Court recalled that, although the third subparagraph of Rule 50(1) of Regulation No 2868/95 provides that, where the action is directed against a decision of an Opposition Division, the Board of Appeal must limit�its�examination�of�the�action�to�facts�and�evidence�presented�within�the�time�limits�set�or�specified�by�the�

41/ � Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).

42/ � Commission Delegated Regulation (EU) 2017/1430 of 18 May 2017 supplementation Regulation No 207/2009 and repealing Regulations No 2868/95 and No 216/96 (OJ 2017 L 205, p. 1).





Opposition Division, unless the Board considers that ‘additional’ or ‘supplementary’ facts and evidence must be taken into account pursuant to Article 76(2) of Regulation No 207/2009, that rule cannot be interpreted as meaning that it extends the discretion of the Boards of Appeal to new evidence.

In this case, in the opposition procedure, the applicant had produced no evidence as to the content of the national law within the time limit and had not submitted a legitimate reason justifying its conduct. Furthermore, the only piece of evidence submitted by the applicant for the purpose of proving the existence, validity and scope of protection of the earlier non-registered trade mark provided no information on the use of the earlier mark relied on, nor did it contain information on the conditions required by national law. In those circumstances, the Court held�that�the�references�to�the�provisions�of�national�law�provided�by�the�applicant�for�the�first�time�before�the�Board of Appeal were not ‘additional’ or ‘supplementary’ evidence to that which had been submitted before the Opposition Division. Consequently, the Board of Appeal had not erred in law when it held that it did not have discretion�to�accept�evidence�produced�for�the�first�time�before�it,�since�such�evidence�was�out�of�time.

b. Non-contractual liability

In the case that gave rise to the judgment of 17 February 2017, Novar v EUIPO (T-726/14, EU:T:2017:99), the Court was required to adjudicate on the applicant’s claim for compensation for material damage allegedly sustained on account of lawyers’ fees that it had incurred in an appeal against a decision of the Opposition Division of EUIPO allegedly adopted in breach of Rule 19(2)(a) of Regulation No 2868/95 (now Article 7(2)(a) of Delegated Regulation 2017/1430).

After recalling that in order for the European Union to incur non-contractual liability for the unlawful conduct of its�institutions�or�bodies,�three�cumulative�conditions�must�be�satisfied,�namely�the�conduct�in�question�must�be�unlawful,�actual�damage�must�have�been�suffered�and�there�must�be�a�causal�link�between�the�alleged�conduct�and the damage pleaded, the Court began by examining the existence of a causal link between the allegedly unlawful conduct of EUIPO and the damage pleaded in this case.

On that basis, the Court recalled that it is apparent from settled case-law that where representation by a lawyer or adviser in the pre-litigation procedure is not mandatory, there is no causal link between the alleged damage, namely the cost of such representation, and any exceptionable conduct on the part of the EU institution or body. Although it is not possible to prohibit those concerned from seeking legal advice even at that stage, it is their own decision and the institution or agency concerned cannot be held liable for the consequences. In this instance, the Court observed, it was apparent from Article 92 of Regulation No 207/2009 (now Article 119 of Regulation 2017/2001) that representation by a lawyer before the departments of EUIPO was not mandatory for a party such as the applicant. The Court concluded that the lawyers’ fees incurred by the applicant were the result of a choice it had made and could not be directly attributed to EUIPO. There was therefore no causal link between the allegedly unlawful conduct of EUIPO and the costs of legal representation incurred by the applicant in respect of the appeal proceedings.

c. Absolute grounds for refusal

The case that gave rise to the judgment of 21 June 2017, M/S. Indeutsch International v EUIPO — Crafts Americana Group (Representation of chevrons between two parallel lines) (T-20/16, EU:T:2017:410) concerned the application for a declaration of invalidity of a trade mark consisting of a repeated geometric design, registration of which had been�sought�for�‘knitting�needles’�and�‘crochet�hooks’.�The�Board�of�Appeal�had�upheld�the�appeal�filed�against�the decision of the Cancellation Division rejecting that application. According to the Board of Appeal, the contested





mark lacked distinctive character within the meaning of Article 7(1)(b) of Regulation No 207/2009 (now Article 7(1)(b) of Regulation 2017/1001). The essential issue in the case was whether, when assessing the distinctive character of the mark, the Board of Appeal had been entitled to rely, not on the mark at issue as registered, but on the forms in which it considered that the mark was actually used.

In that respect, the Court recalled that, in the light of the imperative needs of legal certainty safeguarded by the existence of the European Union Trade Mark Register, the distinctive character of a mark must be assessed as it was registered or as it appears in the trade mark application, regardless of how it is used. It emphasised that to apply Articles 7 and 8 of Regulation No 207/2009 (Article 8 now being Article 8 of Regulation 2017/1001) by taking into account, not EU trade marks as applied for or registered, but as used, would negate the function of that register as a guarantor of the certainty that must surround the precise nature of the rights that it is supposed to protect. In the light of those considerations, where the mark applied for or registered consists in a two-dimensional or three-dimensional representation of the product that it covers, its distinctive character depends on�whether�it�departs�significantly�from�the�norm�or�customs�of�the�sector�and�thereby�fulfils�its�essential�function�of identifying the origin of the product. In that context, as regards marks consisting of the shape of an actual product, and not of an abstract form, which they designate, the competent authority may identify their essential characteristics by examining the product itself. In this case, the mark at issue as registered had the characteristics of an abstract geometric shape composed of a repetitive design consisting of two parallel lines enclosing clearly delineated chevrons, all black and white. The Court inferred from this that to rely, in the circumstances of the present case, on the fact that a pattern in the form of multicoloured chevrons appears on the surface of the applicant’s goods in order to examine the distinctive character of the appearance of those goods for the purpose of Article 7(1)(b) of Regulation No 207/2009, instead of basing that examination on the mark at issue as registered, was not part of a process of identifying the essential characteristics of that mark, but rather constituted a significant�alteration�of�those�characteristics.�It�therefore�concluded�that�there�had�been�an�infringement�of�Article 7(1)(b) of Regulation No 207/2009.

In the case that gave rise to the judgment of 14 December 2017, bet365 Group v EUIPO — Hansen (BET365) (T-304/16, EU:T:2017:912), the Court was required to examine the lawfulness of the decision of the Fifth Board of Appeal�of�EUIPO�finding�that�the�word�sign�BET365,�registration�of�which�had�been�sought�by�the�applicant,�had�not acquired distinctiveness through use in a substantial part of the relevant territory in which it intrinsically lacked distinctiveness.

Recalling that, under Article 7(2) and (3) of Regulation No 207/2009 (now Article 7(2) and (3) of Regulation 2017/1001), the extrapolation of the acquisition of distinctive character through use in certain Member States to other Member States cannot be ruled out, in so far as objective and credible factors permit the view that those markets are comparable so far as the perception of the contested mark by the relevant public is concerned, the Court held that�the�Board�of�Appeal�had�not�erred�in�finding�that�the�examination�of�the�acquisition�by�the�contested�mark�of distinctive character through use should have been limited solely to EU Member States in which a large part of consumers spoke or understood English and, consequently, were able to understand the meaning of the expression ‘bet365’. It considered, however, that the Board of Appeal had been wrong to exclude Cyprus and Malta from the relevant territory since English was widely spoken or understood in those two countries and since they were already members of the European Community at the time of the application to register the contested mark.

Next, the Court observed that the acquisition by a mark of distinctive character through use does not necessarily mean that it has been used independently, but may result from its use as part of another registered mark or from its use in conjunction with another registered mark, provided that, in both cases, the use made leads the relevant class of persons to perceive that the goods or services designated exclusively by the mark under examination originate from a given undertaking which uses it as part of another mark or in conjunction with another mark. There was thus no reason to consider the various uses of the element ‘bet365’ to be inherently incapable of helping to show that the contested mark had acquired distinctive character through use, particularly




since that mark is a word mark, the representations and uses of which cannot all be foreseen, provided that they constitute use of the contested sign as a mark.

In addition, the Court considered that the Board of Appeal had erred in law in asserting generally that the use of the contested mark as the name of an internet site could not constitute use of the mark as a trade mark. According to the Court, it is reasonable to consider that, except with regard to certain new players or betters for whom the experience is new, a customer who connects to the applicant’s website at ‘www.bet365.com’ does not do so by chance�and�uses�the�contested�mark�or�its�derived�marks�to�identify�services�offered�by�the�applicant,�as�opposed�to�services�offered�by�its�competitors,�in�the�same�way�as�a�customer�who�returns�to�a�shop�whose�sign�corresponds�to the mark of the goods and services that he is looking for, which are sold there. Information such as the number of connections to the applicant’s website, that website’s ranking in terms of the number of visits in various countries or the number of times the contested mark or its derived marks were the subject of a search using internet search engines is information which can help to show that the contested mark has acquired distinctive character through use. The same may be true of extracts of pages from the applicant’s website or other websites, in various languages, on which the contested mark or its derived marks appear, provided that the scope of the evidence adduced�can�illustrate�significant�use�of�the�contested�mark�as�a�mark.�Furthermore,�the�Court�emphasised�that�the appearance of the element ‘bet365’ in the sporting press or specialist gambling and betting press, for example, in�association�with�betting�odds,�a�comparison�of�services�offered�by�different�providers,�or�in�the�context�of�sponsorship of sporting events which constitute the betting medium, clearly illustrate its use as a mark for the purpose of designating the origin of the services proposed or referred to, to distinguish them from services of the applicant’s competitors and, as the case may be, to promote them. It followed that the Board of Appeal had erred in its legal characterisation of the facts before it when it ruled that the press articles submitted by the applicant could not, at least with regard to some of them, illustrate use of the contested mark as a mark.

Last, the Court observed that, having regard to the fact that the contested mark and its derived marks were the only ones to be used by the applicant as marks capable of identifying its gambling and betting services in general, if�the�figures�submitted,�namely�turnovers,�stake�figures�or�advertising�investment,�could�reasonably�be�attributed�essentially to gambling and betting, they must accordingly be taken into consideration for those services. The Board of Appeal had therefore also erred in its legal characterisation of the facts by excluding that information from its assessment. In those circumstances, given the criteria for assessing whether a mark has acquired distinctive�character�through�use,�and�having�regard,�first,�to�the�various�errors�of�law�or�of�legal�characterisation�of the facts referred to and, second, to the considerable evidence adduced by the applicant before the Board of Appeal�that�might�have�effectively�helped�to�show�whether�the�contested�mark�had�acquired�distinctive�character�through use in the relevant territory, but which the Board of Appeal had not taken take into account for that purpose,�the�Court�concluded�that�the�contested�decision�was�not�sufficiently�substantiated�by�valid�grounds�justifying its operative provisions concerning the gambling and betting services.

d. Relative grounds for refusal

In the case that gave rise to the judgment of 7 December 2017, Coca-Cola v EUIPO — Mitico (Master) (T-61/16, EU:T:2017:877), an action had been brought before the Court against the decision of the Fourth Board of Appeal of�EUIPO�dismissing�the�appeal�filed�against�the�decision�of�the�Opposition�Division�rejecting�the�opposition�filed�against�the�application�for�registration�as�a�trade�mark�of�the�figurative�sign�Master.�That�decision�followed�on�from the judgment in Coca-Cola v OHIM — Mitico (Master), 43 whereby�the�Court�had�annulled�a�first�decision�of�the�Board�of�Appeal�dismissing�the�appeal�filed�against�the�decision�of�the�Opposition�Division�rejecting�the�

43/ �Judgment�of�11�December�2014,�T-480/12,�EU:T:2014:1062.





opposition. The Court had the opportunity, in particular, in the context of the assessment of the ‘risk of free-riding’ on�the�earlier�mark,�to�rule,�first,�on�whether�the�use�outside�the�European�Union�of�the�mark�applied�for�should�be taken into consideration in the light of the principle of territoriality and, second, on the possibility of adducing proof of such a risk on the basis of logical inferences.

As�regards,�first,�whether�the�use�outside�the�European�Union�of�the�mark�applied�for�should�be�taken�into�consideration, the Court recalled that the principle of territoriality, in trade mark law, means that it is the law of the State — or of the union of States — where protection of a trade mark is sought that determines the conditions of�that�protection.�As�the�intervener�had�filed�an�application�for�a�European�Union�trade�mark,�according�to�the�principle of territoriality it was EU law, in particular Regulation No 207/2009, that determined the conditions of that protection. According to the Court, the principle of territoriality in trade mark law does not in any way preclude taking into account instances of use of the mark applied for outside the European Union as a basis for a logical inference relating to the likely commercial use of that mark in the Union, in order to establish the existence of a risk that unfair advantage will be taken, in the Union, of the reputation of an earlier EU trade mark within the meaning of Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001). It followed, in this case, that the principle of territoriality did not preclude taking into consideration evidence relating to the actual commercial use of the mark applied for, Master, (in combination with the term ‘cola’) in Syria and the Middle East, such as excerpts from the website ‘www.mastercola.com’, which is written mainly in Arabic, for the purpose of establishing a risk that the use of that mark in the Union will take unfair advantage there of the reputation of the four earlier Coca-Cola EU trade marks.

As regards, second, the assessment of logical inferences as to the risk of free-riding in the European Union, the Court considered that it might be logically inferred from an application for registration of an EU trade mark that its proprietor intends to market its goods or services in the European Union. In the present case, the Court emphasised, it was therefore logically foreseeable that the intervener, if it were to obtain the registration of the mark applied for, would amend its website in accordance with such an intention to market its goods under that mark in the European Union. In fact, the website ‘www.mastercola.com’ was not static and could be amended in order�to�target�EU�consumers,�in�particular�by�adding�content�in�one�or�more�official�languages�of�the�Union.�In�the�absence�of�any�specific�information�as�to�the�intervener’s�commercial�intentions�in�the�Union,�the�Court�considered that the excerpts from the website ‘www.mastercola.com’ produced by the applicant and relating to the actual use of the trade mark applied for by the intervener outside the Union were likely to lead prima facie to the conclusion that there was a non-hypothetical future risk of unfair advantage in the Union. The Court also observed�that�the�fact�that�the�intervener�had�not�provided�any�specific�information�concerning�possible�commercial�intentions�in�the�European�Union�different�from�those�concerning�third�countries�was�not�irrelevant.�Consequently,�the Court concluded that the actual use of the mark applied for by the intervener in a particular form and chosen by design outside the European Union might lead to a logical inference that there was a serious risk that the mark applied for would be used in the same way within the European Union as in third countries, all the more so since the intervener had expressly requested the registration of the mark applied for for use in the European Union.

In the case that gave rise to the judgment of 11 December 2017, JT v EUIPO — Carrasco Pirard (QUILAPAYÚN) (T-249/15, EU:T:2017:885), an action had been brought before the Court for annulment of the decision of the Board of Appeal of EUIPO annulling the decision of the Opposition Division and rejecting the opposition, on the ground that the applicant had not proved that it was the ‘real’ proprietor of the earlier mark on which the opposition had�been�based.�This�case�originated�in�opposition�proceedings�based�on�an�earlier�non-registered�figurative�mark�(QUILAPAYÚN)�and�filed�against�the�application�for�registration�of�a�trade�mark�identical�to�the�earlier�non-registered mark. This case gave the Court the opportunity to examine the novel question whether the capacity of�co-proprietor�of�a�trade�mark�is�sufficient�for�the�purpose�of�filing�an�opposition.

According to the Court, it follows from Article 8(1)(a) and (b) and (2)(c) of Regulation No 207/2009 (now Article 8(1)(a) and (b) and (2)(c) of Regulation 2017/1001), Article 41(1)(a) of Regulation No 207/2009 (now Article 46(1(a) of Regulation 2017/1001), Rule 19(2) and Rule 20(1) of Regulation No 2868/95 that in order to give notice of opposition,




within the meaning of Article 8(1) of Regulation No 207/2009, on the basis of a well-known mark, within the meaning�of�Article�8(2)(c)�of�that�regulation,�the�party�filing�the�opposition�must�establish�that�the�mark�is�well�known in a Member State, within the meaning of Article 6bis of the Paris Convention for the Protection of Intellectual Property, 44 and that he is the proprietor of the mark. In that regard, the Court observed that proof of ownership of�a�non-registered�mark�corresponds�to�specific�requirements.�The�applicant�cannot,�for�example,�produce�a�certificate�of�filing�or�registration�of�the�mark�on�which�the�opposition�is�based�in�order�to�prove�that�he�is�the�proprietor. He must prove that, by use of the earlier non-registered mark, he has acquired rights over that mark.

Furthermore, according to the Court, it was not apparent from any of the provisions referred to above that an opponent�who�files�an�opposition�under�Article�8(2)(c)�of�Regulation�No�207/2009�must�prove�that�he�is�the�‘exclusive’ proprietor of the earlier well-known non-registered mark on which he bases his opposition. It could be inferred from Article 41 of Regulation No 207/2009, Rule 19(2) and Rule 20(1) of Regulation No 2868/95 that the�opponent�is�required�to�prove�that�he�has�acquired�sufficient�rights�over�the�earlier�well-known�non-registered�mark, within the meaning of Article 8(2)(c) of Regulation No 207/2009, to be regarded as the proprietor of that mark, which does not entail showing exclusive ownership of the mark. Rule 15(1) of Regulation No 2868/95 (now Article 2(1) of Delegated Regulation 2017/1430) provides, moreover, that ‘if an earlier mark and/or an earlier right has�more�than�one�proprietor�(co-ownership),�the�opposition�may�be�filed�by�any�or�all�of�them’,�which�allows�each of the co-owners of an earlier mark to oppose the registration of a mark that is applied for.

In this case, the Court observed, if exclusive ownership of the earlier mark were required, neither the applicant nor the trade mark applicants could oppose registration of the sign at issue by a third party, unless they opposed that registration together, since they all claim ownership of that sign. In fact, the acquisition of rights by the applicant in the earlier non-registered mark would allow him to oppose registration of the mark applied for, irrespective of whether others, including the trade mark applicants, have also acquired rights in that mark from the use they have also been able to make of it. In those circumstances, the Court considered that the Board of Appeal had erred in law in requiring the applicant to prove that he was the exclusive proprietor of the earlier mark,�without�examining�whether�it�was�sufficient�for�him�to�be�its�co-owner.

3. DESIGNS

In the case that gave rise to the judgment of 16 February 2017, Thermosiphons for radiators (T-828/14 and T-829/14, EU:T:2017:87), 45�the�Court�also�had�the�opportunity�to�provide�clarification�concerning�the�date�on�which it is appropriate to examine the individual character of a design and to determine whether there is saturation of the state of the art within the meaning of Article 6(1) of Regulation (EC) No 6/2002. 46 The applicant claimed that the Board of Appeal had erred as to when the assessment of the saturation of the state of the art is to be carried out in taking the date of delivery of the contested decisions as the correct point in time, whereas it should have been assessed by reference to the time when the application for registration of the contested designs was filed.

In that regard, the Court stated that it is in fact by reference to the date on which the application for registration of�the�design�is�filed�that�the�individual�character�of�the�contested�design�must�be�assessed�under�Article�6(1)�of�Regulation No 6/2002 and a determination made as to whether there is a saturation of the state of the art. The

44/ �Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised and amended.

45/ �See also, above, the discussion of this judgment under ‘V. Intellectual property – 1. Composition of the Boards of Appeal after referral’.

46/ �Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).




Court therefore found that the Board of Appeal had erred in law as regards the date by reference to which a determination is to be made as to whether there is a saturation of the state of the art.

In the case that gave rise to the judgment of 13 June 2017, Ball Beverage Packaging Europe v EUIPO — Crown Hellas Can (Cans) (T-9/15, EU:T:2017:386),�the�Court�had�the�opportunity�to�provide�helpful�clarification�as�regards�the nature of the registration process for Community designs, the concept of ‘product’ within the meaning of Article 3(a) of Regulation No 6/2002 and the extent of the description of the contested design contained in the application for registration pursuant to Article 36(3)(a) of that regulation.

First�of�all,�the�Court�observed�that,�in�so�far�as�the�definition�of�the�subject�matter�of�the�protection�afforded�by�the design at issue forms part of the substantive examination of the registration of the design, a position taken by EUIPO on that question during the registration process cannot bind the Board of Appeal, given the essentially formal and expeditious nature of the review carried out by EUIPO during that registration process.

Next,�the�Court�rejected�the�complaint�that�the�Board�of�Appeal�had�erred�in�finding�that�the�contested�design,�namely�the�representation�of�three�cans�of�different�sizes,�did�not�constitute�a�product�within�the�meaning�of�Article 3(1) of Regulation No 6/2002. In that regard, the Court noted that the subject matter of a design can only constitute a single unit, that article expressly referring to the appearance of ‘a product’. Furthermore, according to the Court, a group of articles may constitute ‘a product’ within the meaning of that provision if they are linked by aesthetic and functional complementarity and are usually marketed as a unitary product. Thus, the Court held that it was clear that the three cans represented in the contested design did not perform a common function in the sense of a function that could not be performed by each of them individually as is the case, for example, of table cutlery or a chess board and chess pieces.

Last, the Court observed that the description which may be contained in the application for registration cannot influence�the�substantive�assessments�relating�to�the�novelty�or�individual�character�of�the�design�at�issue.�According�to�the�Court,�that�description�may�also�not�influence�the�question�of�what�is�the�subject�matter�of�the�protection�afforded�by�the�design�at�issue,�which�is�clearly�connected�with�the�assessments�relating�to�novelty�and individual character.

4. PLANT VARIETIES

In the case that gave rise to the judgment of 23 November 2017, Aurora v CPVO — SESVanderhave (M 02205) (T-140/15, EU:T:2017:830), an action had been brought before the Court for annulment of the decision of the Board�of�Appeal�of�the�Community�Plant�Variety�Office�(CPVO)�rejecting�the�application�for�a�declaration�of�nullity�in respect of the Community plant variety right granted to the variety M 02205, a sugar beet variety. The application for�a�declaration�of�nullity�was�based�on�the�claim�that�the�variety�M�02205�did�not�fulfil�the�‘distinctiveness’�condition, within the meaning of Article 7(1) of Regulation (EC) No 2100/94. 47

In�the�first�place,�the�Court�recalled�that�the�CPVO�has�a�broad�discretion�concerning�the�declaration�of�nullity�of�a�plant�variety�right.�Therefore,�only�where�there�are�serious�doubts�that�the�relevant�conditions�were�fulfilled�on the date of the examination provided for in Regulation No 2100/94 can a re-examination of the protected variety�by�way�of�nullity�proceedings�under�Article�20�of�that�regulation�be�justified.�According�to�the�Court,�it�is�apparent from the relevant rules that the notes of expression in the comparative distinctness report, on the basis of which the distinctness of a candidate variety is established, have to correspond to the notes collected following the comparative growing trials carried out in two annual growing cycles following the application for a

47/ �Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1).





Community plant variety right for the candidate variety. In that context, the Court observed that, in this case, the applicant had been perfectly entitled to rely on the series of errors in the comparative distinctness report, which had been amended on several occasions. It therefore considered that the applicant had adduced, before the Board�of�Appeal,�factual�elements�of�sufficient�substance�to�raise�serious�doubts�as�to�whether�the�data�used�for�one�of�the�two�reference�varieties�had�been�sourced�from�the�official�description�of�that�variety.

In the second place, the Court recalled that the principle of examination of the facts by the CPVO of its own motion applies in proceedings before the Board of Appeal and that the Board of Appeal is bound by the principle of sound administration, pursuant to which it is required to examine carefully and impartially all the relevant factual and legal information in the case before it. In that regard, the Court observed that it had therefore been for the Board of Appeal to ensure that it had, at the time of the adoption of the contested decision, all the relevant information�—�namely,�more�specifically,�the�results�of�the�comparative�growing�trials�carried�out�—�to�be�able�to�assess�whether�the�finding�of�distinctness�of�variety�M�02205�had�been�made�in�accordance�with�the�applicable�technical rules. In fact, the CPVO had admitted that, at the time of adoption of the contested decision, the Board of Appeal had not had those results. Consequently, the Court concluded that, by failing to carry out an appropriate examination�in�order�to�be�satisfied�that�the�distinctive�character�of�variety�M�02205�had�been�established�on�the�basis�of�data�derived�from�the�comparative�growing�trials,�the�Board�of�Appeal�had�not�duly�fulfilled�its�obligations.

VI. COMMON FOREIGN AND SECURITY POLICY — RESTRICTIVE MEASURES

As in previous years, proceedings relating to restrictive measures in the area of the Common Foreign and Security Policy (CFSP) have developed further in 2017. A number of decisions merit particular attention.

1. UKRAINE

In the case that gave rise to the judgment of 15 June 2017, Kiselev v Council (T-262/15, EU:T:2017:392), the Court was required to adjudicate on the inclusion of the Head of the Russian Federal State news agency, appointed by presidential decree, on the list of persons subject to restrictive measures in respect of actions undermining or threating the territorial integrity, sovereignty and independence of Ukraine, on the ground that he was a central figure�of�the�government�propaganda�supporting�the�deployment�of�Russian�forces�in�Ukraine.�

After noting that the restrictive measures at issue were compatible with the exemptions in relation to security laid down in Article 99(1)(d) of the Agreement on partnership and cooperation between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, 48 the Court addressed, quite particularly, the question whether the application to the applicant’s situation of the designation criterion

48/ �Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part (OJ 1997 L 327, p. 3). It should be noted that the provision in question provides for a derogation which may be invoked unilaterally by a party in order to take any measures which it considers necessary for the protection of its essential security interests, in particular ‘in time of war or serious international tension constituting threat of war or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security’.




set out in the applicable provisions of EU law 49 — namely the criterion applicable to persons actively supporting actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in that State — amounted to a breach of his right to freedom of expression.

In�the�first�place,�emphasising�that�any�restriction�on�freedom�of�expression�must�be�provided�for�by�law,�the�Court observed that the restrictive measures in question were set out in acts of general application and had, first,�clear�legal�bases�in�EU�law,�namely�Article�29�TEU�and�Article�215�TFEU,�and,�second,�a�sufficient�statement�of reasons as regards both their scope and the reasons justifying their application to the applicant. According to the Court, in view of the important role played by the media, in particular the audiovisual media, in modern society, it was foreseeable that large-scale media support for the actions and policies of the Russian Government destabilising Ukraine, provided, in particular during very popular television programmes, by a person appointed by a presidential decree as Head of the national press agency of the Russian Federation, could be covered by the criterion of ‘active support’, provided that the resulting limitations on the freedom of expression complied with the�other�conditions�that�must�be�satisfied�in�order�for�that�freedom�to�be�legitimately�restricted.

In the second place, as regards the question whether the restrictive measures adopted pursued an objective of general interest, recognised as such by the European Union, the Court observed that, by those measures, adopted in particular in application of the criterion at issue, relating to active support, the Council had sought to exert pressure on the Russian authorities to put an end to their actions and policies destabilising Ukraine, which corresponded to one of the objectives of the CFSP.

In the third and last place, as regards the necessary and proportionate nature of the restrictive measures, the Court referred to its case-law and to that of the Court of Justice concerning the principle of proportionality and the�limitations�of�freedom�of�expression�and,�in�particular,�to�the�principles�identified�in�that�respect�in�the�case-law of the European Court of Human Rights. In that context, the Court observed that, in his role as a journalist, which could not be separated from his role as Head of the Russian press agency, the applicant had on several occasions addressed the situation that the Russian Government had created in Ukraine. According to the Court, it was well known that the actions and policies of the Russian Government that destabilise Ukraine were the subject of extensive media coverage in Russia and were often presented to the Russian people, through propaganda, as�being�fully�justified.�In�those�circumstances,�and�in�the�light�of�the�evidence�in�the�Council’s�possession�concerning the words spoken by the applicant, the adoption of restrictive measures in relation to him because of his propaganda in support of the actions and policies of the Russian Government destabilising Ukraine could not be regarded as a disproportionate restriction of his right to freedom of expression. Furthermore, observing that the applicant was a national of a third country, the Russian Federation, and was resident in that State, where he performed his professional activity, the Court held that the restrictive measures at issue — which placed restrictions on the entry into and transit through the territory of the Member States and froze his funds in the European Union — did not impair the substance of the applicant’s right to exercise his freedom of expression, in particular in the context of his professional activity in the media sector, in the country in which he resided and worked.

In the case that gave rise to the judgment of 7 July 2017, Azarov v Council (T-215/15, under appeal, 50 EU:T:2017:479), an action had been brought before the Court by the former Ukrainian Prime Minister against the acts whereby the Council had decided to maintain his name on the list of persons covered by the restrictive measures concerning

49/ � Article 1(1)(a) and Article 2(1)(a) of Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16), as amended, Article 3(1)(a) of Council Regulation (EU) No 269/2014 of 17 March 2004 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), as amended.

50/ � Case C-530/17 P, Azarov v Council.




persons�identified�as�responsible�for�the�misappropriation�of�Ukrainian�State�funds.�51 The applicant claimed, in particular, that the Council had made a manifest error of assessment in deciding to extend the restrictive measures at issue, since the contested acts contained only very vague and brief statements of reasons. In his submission, the Council ought to have provided further, more detailed information.

In that regard, the Court recalled that the Council is not required to conduct, of its own initiative and as a matter of course, its own investigations or to carry out checks with a view to obtaining additional details, when it already has evidence supplied by the authorities of a third country on which to take restrictive measures vis-à-vis persons originating in that country who are the subject of judicial proceedings there. The Court made clear that, in this case,�what�the�Council�was�required�to�ascertain�was,�first,�to�what�extent�the�documents�on�which�it�intended�to rely proved that, as indicated by the grounds for including the applicant’s name on the list at issue, the applicant was the subject of criminal proceedings brought by the Ukrainian authorities in respect of acts that might be characterised as the misappropriation of State funds, and, secondly, whether those proceedings were such that the applicant’s actions could be characterised as satisfying the abovementioned criterion. Only if those investigations had not been successful would it have been incumbent on the Council to investigate further. However, it was for the Council to assess, on the basis of the circumstances of the case, whether it was necessary to investigate further, in particular to seek the disclosure of additional evidence from the Ukrainian authorities if it transpired that�the�evidence�already�supplied�was�insufficient�or�inconsistent.�Furthermore,�when�availing�themselves�of�the opportunity which the persons concerned must be given to submit their comments on the reasons which the Council intended to use in order to maintain their names on the list at issue, those persons might submit such information, or even exculpatory evidence, which would require the Council to investigate further.

As regards the argument derived from the judgment in LTTE v Council, 52 namely that the Council must, before acting on the basis of a decision of an authority of a third State, carefully verify that the relevant legislation of that�State�ensures�protection�of�the�rights�of�defence�and�a�right�to�effective�judicial�protection�equivalent�to�that�guaranteed�at�EU�level,�first,�the�Court�observed�that,�in�the�case�that�had�given�rise�to�that�judgment,�the�restrictive measures had been adopted on the basis of Common Position 2001/931/CFSP, 53 adopted in the context of�the�fight�against�terrorism,�which�established�a�mechanism�the�effect�of�which�was�to�allow�the�Council�to�include a person on a list relating to frozen funds on the basis of a decision taken by a national authority, in some cases, of a third State.

In the present case, the existence of a prior decision by the Ukrainian authorities was not one of the criteria laid down as a condition for the adoption of the restrictive measures at issue, the judicial proceedings initiated by those authorities being only the factual basis for those measures.

Second,�the�Court�emphasised�that�there�was�in�any�event�a�considerable�difference�between�restrictive�measures�which were concerned with combating terrorism and those forming part of cooperation between the European Union,�on�the�one�hand,�and�the�new�authorities�of�a�third�State,�in�this�instance�Ukraine,�on�the�other.�The�fight�against terrorism, to which the Council contributes by imposing restrictive measures on certain persons or

51/ �Council�Decision�(CFSP)�2015/364�of�5�March�2015�amending�Decision�2014/119/CFSP�concerning�restrictive�measures�directed�against�certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 25), and Council Implementing Regulation (EU) 2015/357 of 5 March 2015 implementing Regulation (EU) No 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine (OJ 2015 L 62, p. 1).

52/ �Judgment�of�16�October�2014,�T-208/11�and�T-508/11,�EU:T:2014:885.

53/ �Council�Common�Position�2001/931/CFSP�of�27�December�2001�on�the�application�of�specific�measures�to�combat�measures�to�combat�terrorism (OJ 2001 L 344, p. 93).




entities, does not necessarily form part of cooperation with the authorities of a third State which has undergone a regime that the Council has decided to support, as in this case.

Thus, if the Council’s eminently political decision to cooperate with the new Ukrainian authorities so as to enable them in particular to recover any misappropriated public funds ‘with a view to consolidating and supporting the rule of law’ in Ukraine were subject to the condition that the Ukrainian State should, immediately after the change of�regime,�guarantee�a�level�of�protection�of�fundamental�rights�equivalent�to�that�offered�by�the�European�Union�and�its�Member�States,�the�broad�discretion�enjoyed�by�the�Council�when�it�comes�to�defining�the�general�criteria�for identifying the category of persons capable of forming the subject of restrictive measures to support those new authorities would in essence be undermined.

In exercising that broad discretion, the Council must therefore be free to take the view that, following the change of regime, the Ukrainian authorities deserve to be supported in so far as they are improving democratic life and respect�for�the�rule�of�law�in�Ukraine�by�comparison�with�the�state�of�affairs�obtaining�there�previously,�and�that�one�way�of�consolidating�and�supporting�the�rule�of�law�is�to�freeze�the�assets�of�persons�who�have�been�identified�as responsible for the misappropriation of Ukrainian State funds. Consequently, only if the Council’s political decision to support the new Ukrainian regime, including by way of cooperation in the form of the restrictive measures at issue, proved to be manifestly erroneous, in particular because fundamental rights are being systematically violated in that country following the change of regime, could any inconsistency between the protection of fundamental rights in Ukraine and that in place in the European Union have a bearing on the legality of maintaining those measures against the applicant.

2. REPUBLIC OF TUNISIA

In the case that gave rise to the judgment of 5 October 2017, Mabrouk v Council (T-175/15, EU:T:2017:694), the Court was required to adjudicate on the application for annulment of the decisions whereby the Council had decided to maintain the applicant’s name on the list of persons covered by the restrictive measures directed against certain persons and entities in view of the situation in Tunisia. 54 In support of his action, the applicant claimed in particular that there had been a breach by the Tunisian authorities of the obligation to adjudicate within a reasonable time in the judicial proceedings on which the Council’s decision to maintain his name on the list was based and a breach by the Council itself of his right to be tried within a reasonable time.

On�that�point,�first,�the�Court�observed�that�it�was�for�the�Tunisian�authorities�to�rule�on�whether,�in�the�judicial�proceedings in which the applicant was involved, there had been a breach of the principle that proceedings should be concluded within a reasonable time. It observed, however, that compliance with the principles of the rule of law and human rights, as well as respect for human dignity, were required of all actions of the European Union, including actions taken under the CFSP. The principle that proceedings should be concluded within a reasonable time formed part of the right to a fair trial, which was safeguarded by the provisions of a number of legally binding instruments of international law. In addition, the contested decisions formed part of a policy of support for Tunisia based on the objectives of promoting respect for human rights and the rule of law. The Court inferred�that�it�could�not�be�ruled�out�that,�where�there�was�objective,�reliable,�specific�and�consistent�evidence�such as to raise legitimate questions concerning observance of the applicant’s right to have his case heard within a�reasonable�time�by�the�Tunisian�authorities,�the�Council�might�be�required�to�carry�out�the�necessary�verifications.�It�considered,�however,�that�that�condition�was�not�satisfied�in�this�case.�

54/ �Council Decision 2011/72/CFSP of 31 January 2011 concerning restrictive measures directed against certain persons and entities in view of the situation in Tunisia (OJ 2011 L 28, p. 62), Council Decision (CFSP) 2015/157 of 30 January 2015 amending Decision 2011/72 (OJ 2015 L 26, p. 29), and Council Decision (CFSP) 2016/119 of 28 January 2016 amending Decision 2011/72 (OJ 2016 L 23, p. 65).




Second, the Court rejected the applicant’s argument that the Council had infringed Article 47 of the Charter of Fundamental Rights in that it had breached his right to have the proceedings concluded within a reasonable time by failing to take the necessary measures to ensure that the duration of the judicial proceedings concerning him in Tunisia did not exceed a reasonable period. According to the Court, Article 47 of the Charter of Fundamental Rights was applicable only to the judicial review by the EU judicature of the asset freeze at issue. Conversely, it did not apply either to the judicial proceedings in Tunisia, which did not come under EU law, or to the contested decision, which did not emanate from a court and the subject matter of which was not of a judicial nature. The Court stated that, even if that argument might be interpreted as alleging a breach of the principle of sound administration, in any event, as the applicant had failed to establish that the judicial proceedings in Tunisia had exceeded a reasonable period, he had not been able to show that the duration of the freezing of his assets in the European Union was itself excessive.

As regards the applicant’s argument that the Council had made manifest errors of assessment with regard to developments in the process of democratisation in Tunisia and the need for restrictive measures directed against Tunisian nationals responsible for the misappropriation of Tunisian State funds, the Court recalled that the Council must be allowed a broad discretion in that area, so that the legality of a measure adopted in those areas could be�affected�only�if�the�measure�was�manifestly�inappropriate.�The�various�developments�of�a�judicial,�constitutional�and electoral nature put forward by the applicant did not show that the Council had made a manifest error in its assessment of that process. Indeed, while those developments were indicative of progress, they did not allow any obvious conclusion to be drawn that that process had been successfully completed, as that process was subject to, inter alia, the consolidation of the rule of law and the democratic achievements of the new Tunisian constitution. The Court made clear that in any event any repeal of the restrictive measures at issue was dependent only on the completion of the judicial proceedings on which they were based, not on the successful completion of the process of transition to democracy in Tunisia, support for that process being just one of the ultimate objectives of the policy of which that asset freeze formed part, not an additional condition for maintaining the asset freeze.

VII. ECONOMIC, SOCIAL AND TERRITORIAL COHESION

The case that gave rise to the judgment of 4 May 2017, Green Source Poland v Commission (T-512/14, EU:T:2017:299), gave the Court the opportunity to examine the novel question of the admissibility of an action brought by an undertaking�responsible�for�implementing�a�major�project�against�a�Commission�decision�refusing�to�confirm�to�a�Member�State�a�financial�contribution�from�the�European�Regional�Development�Fund�(ERDF)�for�that�major�project.

In�the�first�place,�as�regards�the�first�criterion�of�direct�concern,�namely�that�the�contested�EU�measure�must�directly�affect�the�legal�situation�of�the�individual,�the�Court�observed�that�it�follows�from�the�relevant�provisions�of Regulation (EC) No 1083/2006 55 that it is solely in the context of the relations between the Commission and the�Member�State�that�operations�are�conducted�by�which�the�Commission�assesses�and�confirms�whether�or�not�a�Member�State�is�to�receive�a�financial�contribution�from�the�ERDF�for�a�major�project.�That�is�in�line�with�the fact that, according to case-law, ERDF assistance is intended as a system between the Commission and the

55/ �Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (OJ 2006 L 210, p. 25).




Member State. Furthermore, it is apparent from those provisions that it is the Member States which are responsible for the selection of operations, including major projects. The Commission is not involved in the selection of the major projects proposed to the national authorities by applicants, but merely, and only with respect to the Member States, assesses the consistency and contribution of the major projects which the national authorities have�already�selected�and�have�submitted�to�the�Commission�for�confirmation�of�whether�or�not�a�financial�contribution under the ERDF will be made. In that regard, the Court continued, the reasoning set out in the judgment in Consorzio gruppo di azione locale ‘Murgia Messapica’ v Commission 56 could not be applied in this case, since the selection of the projects was not made by the Commission but was the responsibility of the national authorities alone.

Furthermore,�according�to�settled�case-law,�in�a�decision�granting�EU�financial�assistance�under�the�ERDF,�the�designation of an entity as the authority responsible for implementing the project does not mean that the entity itself�is�entitled�to�such�assistance.�It�is�the�Member�State,�as�the�addressee�of�the�decision�granting�ERDF�financial�assistance, which must be regarded as entitled to such assistance. That applies a fortiori where the ERDF assistance has not yet been granted to the Member State and, hence, where the relationship between the entity designated as�responsible�for�implementing�the�project,�which�is�responsible�for�the�application�or�the�beneficiary�of�the�assistance, and the ERDF assistance is even more indirect.

As regards the deprivation of the resources necessary to implement the project, the inability to continue with the project and the obligation to bear the losses resulting from the expenditure already incurred, on which the applicant relied, the Court considered that, on the assumption that they were established, those factors were not�the�result�either�of�the�contested�decision�itself�or�of�the�provisions�of�EU�law�intended�to�govern�its�effects,�but of the consequences which, within the framework of the contract, the national authorities and the applicant had�attributed�to�that�decision.�In�fact,�the�consequences�and�obligations�flowing�from�the�contract�were�interposed�between the applicant’s legal position and the contested decision. Thus, in accordance with the applicable national law, the applicant could, inter alia, have objected, before the competent national court, to the termination of the contract or the reimbursement requested by the national authorities under that contract, by pleading that the contested decision was invalid.

In the second place, as regards the second criterion of direct concern, namely that the contested EU measure must leave no discretion to its addressees, who are entrusted with the task of implementing it, the Court stated that the implementation of the contested decision by the Member State concerned did not entail, either by virtue of�the�contested�decision�itself�or�of�the�provisions�of�EU�law�intended�to�govern�its�effect,�any�consequence�for�the�applicant,�its�effects�being�confined�solely�to�the�relationship�between�the�European�Union,�in�particular�the�ERDF, and that Member State. In those circumstances, the Court concluded that the applicant was not directly affected�by�the�contested�decision,�which�affected�only�the�legal�relationship�between�the�Commission�and�the�Member States concerned.

56/ � Judgment of 19 May 1994, T-465/93, EU:T:1994:56.




VIII. HEALTH PROTECTION

In the case that gave rise to the judgment of 26 January 2017, GGP Italy v Commission (T-474/15, EU:T:2017:36), an�action�had�been�brought�before�the�Court�for�annulment�of�the�Commission�decision�finding�that�the�measure�taken by the Latvian authorities, in accordance with Directive 2006/42/EC, 57 on the placing on the market of a lawnmower�manufactured�by�the�applicant�was�justified.�This�case,�coming�within�the�context�of�the�‘new�approach’�directives aimed at facilitating the free movement of goods by the harmonisation of the essential requirements of health and safety protection for workers, gave the Court the opportunity to clarify, in particular, the extent of the Commission’s review as regards the triggering of the safeguard clause provided for in Article 11 of Directive 2006/42 and the nature of the measures that may be adopted in that respect. The Latvian authorities considered that the lawnmower in question did not conform to the essential requirements laid down in Directive 2006/42 because it did not comply with the 2010 version of the applicable harmonised standard. The applicant, on the other hand, claimed that the lawnmower complied with the 2006 version of that standard, to which it was possible to�refer�until�31�August�2013,�and�that,�consequently,�the�model�marketed�until�that�date�benefited�from�a�presumption of conformity with the essential requirements laid down in Directive 2006/42.

As�regards,�first,�the�extent�of�the�Commission’s�review,�the�Court�recalled�that,�in�the�context�of�the�adoption�of a decision based on Article 11(3) of Directive 2006/42, it was not for the Commission to review every aspect of the legality of national measures leading to the triggering of the safeguard clause provided for in that article. In that regard, Article 20 of that directive explicitly mentioned the ‘legal remedies available … under the laws in force�in�the�Member�State�concerned’,�which�showed,�first,�that�it�covered�national�measures�taken�on�the�basis�of the directive and, second, that the review of those measures was the responsibility of the national courts. That article therefore did not create obligations for the Commission. In the context of the implementation of Article 11(3) of Directive 2006/42, the Commission’s primary role was to review whether the appropriate measures notified�to�it�by�a�Member�State�were�justified,�from�a�factual�and�legal�point�of�view,�in�order�to�avoid�the�risk�that machinery could compromise, as stated in Article 11(1) of that directive, the health and safety of persons or, where appropriate, domestic animals, property or the environment. Furthermore, the Court emphasised, there was nothing to prevent the ‘appropriate measures’ which Member States must adopt and communicate to the Commission under the safeguard clause provided for in Article 11 of Directive 2006/42 from taking the form of non-unilateral measures or measures which are not directly binding. Therefore, the communication, as in the present case, of the fact that, following action taken by the national authorities, the distributor had taken voluntary measures to withdraw from the market and not to place the product in question on the market did constitute the communication of an appropriate measure capable of giving rise to a Commission decision taken on the basis of Article 11(3) of Directive 2006/42.

As regards, second, the legal force of the 2006 version of the relevant harmonised standard, the Court made clear that, under Article 7 of Directive 2006/42, it was the publication by the Commission of the reference of a harmonised standard in the Official Journal of the European Union that confers on it legal force allowing manufacturers of�machinery�or�their�representatives�to�benefit�from�a�presumption�of�conformity�with�the�essential�health�and�safety requirements set out in that directive and covered by that published harmonised standard. The rules applicable to such publications were those applicable to acts of general application of the institutions of the Union. According to the Court, Article 7 of Directive 2006/42 referred without restriction to harmonised standards, the�references�of�which�had�been�published�in�the�Official�Journal,�without�restricting�its�scope�and�contents�to�harmonised standards whose references were published under that directive. That provision therefore precluded

57/ �Directive�2006/42/EC�of�the�European�Parliament�and�of�the�Council�of�17�May�2006�on�machinery,�and�amending�Directive�95/16/EC�(recast) (OJ 2006 L 157, p. 24).




a�finding�that�the�publications�of�references�of�harmonised�standards�under�Directive�98/37/EC�58 had been implicitly repealed at the same time as that directive. It followed that harmonised standards whose references had been published under Directive 98/37 fell within the scope of Article 7 of Directive 2006/42 as long as the decision giving them legal force so as to provide a presumption of conformity with the essential health and safety requirements set out in the directive applicable at the time the machinery concerned was placed on the market or�entered�into�service,�namely�the�publication�of�their�reference�in�the�Official�Journal,�was�not�explicitly�repealed.�The�Court�concluded�that�the�applicant�had�therefore�been�justified�in�claiming,�in�essence,�that�the�lawnmower�at�issue�benefited�from�a�presumption�of�conformity�with�the�essential�health�and�safety�requirements�set�out�in Directive 2006/42.

IX. CUSTOMS UNION

In the case that gave rise to the judgment of 11 December 2017, Léon Van Parys v Commission (T-125/16, EU:T:2017:884), an action had been brought before the Court against a Commission decision rejecting the request for remission of import duties submitted by a company that imported bananas from Ecuador. That decision had been taken after the partial annulment, in the judgment in Firma Van Parys v Commission, 59 of an earlier Commission decision in which the Commission had considered that the remission of import duties pursuant to Article 239 of Regulation (EEC) No 2913/92 60�was�not�justified�in�the�applicant’s�case.�The�Court�had�considered�that the Commission had not proved a lack of diligence on the applicant’s part. Following that judgment, the Commission had considered it necessary to obtain further information from the customs duties and had informed the applicant that the period of nine months provided for in Article 907 of Regulation (EEC) No 2454/93 61 within which the application for the remission of duties was to be processed was therefore extended until that information was received. The Commission had then adopted the contested decision rejecting the applicant’s application for remission of duties. In its action, the applicant disputed the way in which the Commission had implemented the judgment in Firma Van Parys v Commission. 62 It maintained, more particularly, that, on the assumption that the Commission had had a reasonable period in which to implement that judgment, that period could not in any event exceed a further time limit of nine months laid down in Article 907 du Regulation No 2454/93.

As regards the plea alleging breach of the principle of sound administration, the Court recalled, by way of preliminary point, that, following the judgment in Firma Van Parys v Commission, 63 Article 907 of Regulation No 2454/93 was no longer applicable in the procedure re-opened in order to adopt the contested decision, which was�intended�to�replace�the�first�decision,�since�according�to�the�case-law�only�the�reasonable�period�was�applicable. In the light of the nature of the measures to be taken and the attendant circumstances of the case, the Commission had not complied with a reasonable period in its conduct of the procedure which had led to the adoption�of�the�contested�decision.�In�that�connection,�it�was�sufficient�to�recall�that,�even�if�the�requests�for�

58/ � Directive 98/37/EC of the European Parliament and of the Council of 22 June 1998 on the approximation of the laws of the Member States relating to machinery (OJ 1998 L 207, p. 1).

59/ �Judgment�of�19�March�2013,�T-324/10,�EU:T:2013:136.

60/ � Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

61/ � Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1).

62/ �Judgment of 19 March 2013, T-324/10, EU:T:2013:136.








information sent by the Commission to the national customs authorities had been able to suspend the nine-month time limit, which was not the case as the mechanism laid down in Article 907 of Regulation No 2454/93 could not be applied again, more than 10 months had elapsed between the response of those authorities and the adoption of the contested decision. According to the Court, no measure to be taken by the Commission or which it had taken could justify such a period. While it was indeed true that the judgment in Firma Van Parys v Commission 64�had�obliged�the�Commission�to�re-examine�the�evidence�in�the�file,�the�Court�nonetheless�considered�that�there�was�no�evidence�that,�after�that�judgment,�the�Commission�had�constituted�a�new�file�or�a fortiori presented or discovered new facts.

As to whether the non-compliance with the reasonable time could lead to the annulment of the contested decision, the Court observed that Regulation No 2454/93 was intended to lay down certain rules the application of which aimed to lead to greater legal certainty, as was clear from its recitals, and that it laid down strict time limits to be complied with both by the applicant and by the Commission in order to process a request for remission of import duties. In that context, the Court observed that it was clear from Article 907 of Regulation No 2454/93 that, although the nine-month time limit within which the Commission must adopt its decision may be suspended in certain circumstances, the decision on the request for remission of duties must be given within the time limit laid down in the second paragraph of Article 907 of Regulation No 2454/93, it being stated that the decision-making customs authority is to grant the application pursuant to Article 909 of that regulation. Furthermore, the Court emphasised that if, in this case, the Commission had acted within the framework of Regulation No 2454/93, a decision given after the nine-month time limit, including suspensions, laid down in Article 907 of that regulation, would have had the result that the decision-making customs authority would have granted the applicant’s request. The Court concluded that it was true that the system put in place, and in particular the nine-month time limit laid down in Article 907 of Regulation No 2454/93, had no longer been binding on the Commission in procedures opened under Article 266 TFEU. It noted, however, that nevertheless, by adopting the contested decision without observing a reasonable period, the Commission had disregarded the guarantees laid down in Regulation No 2454/93 and�had�deprived�the�applicant�of�the�effectiveness�of�that�regulation,�of�the�possibility�of�obtaining�a�decision�within�the�prescribed�time�limits,�and�of�the�guarantee�that�it�would�benefit�from�a�favourable�decision�in�the�absence of a response within those time limits. Accordingly, the Commission had breached the reasonable time principle which, in the particular circumstances of the case, constituted a ground for annulment of the contested decision.

X. DUMPING

In the case that gave rise to the judgment of 1 June 2017, Changmao Biochemical Engineering v Council (T-442/12, EU:T:2017:372), the Court had received an application for annulment of Implementing Regulation (EU) No 626/2012, 65 in so far as it applied to the applicant, a company producing and exporting tartaric acid and established in China. The EU institutions had initially granted the applicant market economy treatment during the initial investigation, but had refused to grant it such treatment during the partial interim review investigation under the contested regulation. The applicant claimed that the contested regulation infringed Article 11(3) of the basic regulation, 66 in�so�far�as�there�had�not�been�a�significant�and�lasting�change�in�circumstances�between�the�initial�investigation�


65/ �Council Implementing Regulation (EU) No 626/2012 of 26 June 2012 amending Implementing Regulation (EU) No 349/2012 imposing a definitive�anti-dumping�duty�on�imports�of�tartaric�acid�originating�in�the�People's�Republic�of�China�(OJ�2012�L�182,�p.�1).

66/ �Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51).





and the interim review. In that context, the Court was required, in particular, to rule on whether, in an interim review, the institutions must establish an objective change in the factual circumstances or whether they are entitled�to�carry�out�a�different�assessment�on�the�basis�of�pre-existing�circumstances�in�the�light�of�new�arguments�and evidence adduced by the parties.

The Court observed that, under Article 11(3) of the basic regulation, in carrying out investigations in the course of an interim review, the Commission may, in particular, consider whether the circumstances with regard to dumping�and�injury�have�changed�significantly,�or�whether�existing�measures�are�achieving�the�intended�results�in removing the injury previously established under Article 3 of that regulation. For those purposes, account is to�be�taken�in�the�final�determination�of�all�relevant�and�duly�documented�evidence.�

In this case the Court observed that the Council seemed to have changed its assessment even though the underlying circumstances had not necessarily changed, and concluded that the conditions laid down in Article�2(7)(c)�of�the�basic�regulation�for�granting�market�economy�treatment�were�not�fulfilled.�In�that�regard,�the Court explains that, in the course of the retrospective and prospective analysis which they must carry out for the purposes of the review, the institutions may change their assessment of the circumstances. It would be illogical if the institutions were required to apply Article 2(7)(c) of the basic regulation in a manner which proved to be incorrect in the light of the evidence adduced in the context of the interim review on the sole ground that that provision had been applied in that way during the initial investigation. Since in this instance the assessment carried out in the contested regulation had been based on factual circumstances of a lasting and non-temporary nature, in particular the distortion in the price of benzene and the absence of a refund of 17% value added tax (VAT) on the export of benzene, the Court held that the contested regulation was not contrary to Article 11(3) of the basic regulation.

The case that gave rise to the judgment of 10 October 2017, Kolachi Raj Industrial v Commission (T-435/15, under appeal, 67 EU:T:2017:712) gave the Court the opportunity to clarify its case-law in anti-dumping matters, as regards the conditions for the application of Article 13(2) of the basic regulation, the provision that determines the conditions in which an assembly operation is to be considered to circumvent the measures in force. The applicant had declared that it purchased bicycle parts from Sri Lanka and China in order to assemble them into bicycles in�Pakistan.�The�Commission�had�rejected,�as�lacking�sufficient�evidentiary�value,�the�‘Form�A’�certificates�of�origin�issued by the Sri Lankan authorities provided by the applicant, and had applied by analogy the criteria in Article 13(2)(b) of the basic regulation in order to verify, on the basis of the costs of manufacturing them, the origin of the parts.

In�the�first�place,�in�order�to�clarify�the�respective�roles�of�‘provenance’�and�‘origin’�in�the�interpretation�of�Article�13(2) of the basic regulation, the Court relied on the judgment in Starway v Council, 68 from which it inferred that, as�a�general�rule,�although�it�is�sufficient�to�refer�simply�to�where�the�parts�used�for�assembling�the�final�products�are ‘from’ for the purpose of applying Article 13(2)(b) of that regulation, it may be necessary, in case of doubt, to verify whether the parts ‘from’ a third country in actual fact originate in another country. Furthermore, relying on�different�language�versions�of�the�basic�regulation,�the�Court�made�clear�that�the�expression�‘are�from’�for�the�purposes of Article 13(2)(a) of the basic regulation must be understood as referring to the imports concerned and, therefore, to the export country.

In�the�second�place,�the�Court�pointed�out�that,�although�the�‘Form�A’�certificates�of�origin�have�evidentiary�value�in�relation�to�the�origin�of�the�goods�to�which�they�relate,�it�is�not�absolute.�Such�a�certificate,�completed�by�a�third country, cannot bind the Union authorities with regard to the origin of those goods by preventing them

67/ � Case C-709/17 P, Commission v Kolachi Raj Industrial.

68/ �Judgment�of�26�September�2000,�T-80/97,�EU:T:2000:216.





from verifying the origin by other means where there is objective, sound and consistent evidence creating a doubt as�to�the�true�origin�of�the�goods�covered�by�those�certificates.�In�that�regard,�it�is�clear�from�the�case-law�that�the�verifications�carried�out�after�importation�would�in�large�measure�be�deprived�of�their�usefulness�if�the�use�of�such�certificates�could,�of�itself,�justify�granting�a�remission�of�customs�duties.�The�Court�also�emphasised�that�it is clear from Article 6(8) of the basic regulation that, except in the case of non-cooperation, the information which�is�supplied�by�interested�parties�and�upon�which�the�Commission�intends�to�base�its�findings�must�be�examined�for�accuracy�as�far�as�possible.�Accordingly,�that�provision,�in�like�manner,�justifies�not�only�the�possibility�but also the duty on the part of the Commission to verify the documents submitted to it. Naturally, that duty, as far�as�anti-dumping�is�concerned,�is�without�prejudice�to�the�specific�procedures�laid�down�for�that�purpose�that�are available to the customs authorities.

In the third and last place, the Court held that, in applying Article 13(2)(b) of the basic regulation ‘by analogy’, the Commission in fact examined whether the manufacture of bicycle parts in Sri Lanka circumvented the anti-dumping measures on bicycles originating in China, which was not, however, the aim of the investigation. It was clear from the actual wording of Article 13(2)(b) of the basic regulation that it was to be applied to ‘assembly operations’, the 60% rule laid down in that provision thus applying to the total value of the parts of the ‘assembled product’. However, it was common ground that, in the present case, the investigation was not aimed at the bicycle ‘assembly operations’ in Sri Lanka, nor did it target in any way bicycles ‘assembled’ in that country. Furthermore, as Article 13(2)(b) of the basic regulation did not constitute a rule of origin, it could not be applied ‘by analogy’ for the purpose of determining the origin of a product, a fortiori because the criteria laid down in that provision were�substantially�different�from�those�relating�to�the�rules�of�origin.�It�followed�that�in�the�present�case�the�Commission had erred in law in applying by analogy Article 13(2) of the basic regulation.

XI. SUPERVISION OF THE FINANCIAL SECTOR

In the judgment of 16 May 2017, Landeskreditbank Baden-Württemberg v ECB (T-122/15, under appeal, 69 EU:T:2017:337),�the�Court�confirmed�the�lawfulness�of�the�decision�whereby�the�European�Central�Bank�(ECB),�acting in application of Article 6(4) of the basic regulation, 70�had�classified�the�applicant,�an�investment�and�development�bank�of�Baden-Württemberg�(Germany),�as�a�‘significant�entity’.�In�consequence�of�that�classification,�that bank was subject solely to the direct supervision of the ECB rather than to shared supervision under the single supervisory mechanism (SSM), which the applicant disputed.

In�the�first�place,�the�Court�observed�that�it�was�clear�from�the�structure�of�the�basic�regulation�that�the�Council�had conferred on the ECB exclusive competence in respect of the tasks laid down in Article 4(1) of that regulation. According to the Court, the sole purpose of Article 6 of the basic regulation was to enable decentralised implementation under the SSM of that competence by the national authorities, under the control of the ECB, in respect�of�the�less�significant�entities�and�in�respect�of�the�tasks�listed�in�Article�4(1)(b)�and�(d)�to�(i)�of�that�regulation.

69/ � Case C-450/17 P, Landeskreditbank Baden-Württemberg.

70/ �Council�Regulation�(EU)�No�1024/2013�of�15�October�2013�conferring�specific�tasks�on�the�European�Central�Bank�concerning�policies�relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).




In the second place, the Court stated that it followed from the second subparagraph of Article 6(4) of the basic regulation�that�an�institution�did�not�need�to�be�classified�as�‘significant’�in�‘particular�circumstances’,�a�concept�which, according to Article 70(2) of the SSM Framework Regulation, 71 must be interpreted strictly. In that regard, in�so�far�as�Article�70(1)�refers�to�‘specific�and�factual�circumstances�that�make�the�classification�of�a�supervised�entity�as�significant�inappropriate,�taking�into�account�the�objectives�and�principles�of�[the�basic�regulation]’,�it�necessarily followed therefrom that the only situation envisaged was that where direct prudential supervision by�the�ECB,�implied�by�the�classification�of�an�entity�as�‘significant’,�would�be�less�capable�of�ensuring�achievement�of the objectives of the basic regulation than direct prudential supervision of that entity by the national authorities. On the other hand, a literal interpretation of Article 70(1) of the SSM Framework Regulation does not suggest that�a�‘significant�entity’�should�be�reclassified�as�‘less�significant’�on�the�ground�that�direct�supervision�by�the�national authorities under the SSM would be just as capable of achieving the objectives of the basic regulation as supervision by the ECB alone.

In the third and last place, the Court stated that the interpretation of Article 70(1) of the SSM Framework Regulation in the light of the requirements of the principles of subsidiarity and proportionality cannot lead to such a situation either. In so far as the national authorities, under the SSM, are acting within the scope of decentralised implementation of�an�exclusive�competence�of�the�Union,�the�only�competence�liable�to�be�affected�by�the�exercise�of�direct�prudential supervision by the ECB is the Member States’ competence in principle for the implementation of EU law in their legal orders, underscored in Article 291(1) TFEU. However, the preservation of that competence cannot entail an interpretation of Article 70(1) of the SSM Framework Regulation that would require a determination on a�case-by-case�basis�in�respect�of�an�institution�classified�as�significant�under�the�criteria�laid�down�in�Article�6(4)�of the basic regulation if its objectives might be attained just as well through direct supervision by the national authorities. In fact, such an examination would run directly counter to two factors that play a fundamental role in�the�logic�of�Article�6(4)�of�the�basic�regulation,�namely,�first,�the�principle�that�significant�institutions�come�under�the�sole�supervision�of�the�ECB�and,�second,�the�existence�of�specific�alternative�criteria�that�permit�the�classification�of�the�significance�of�a�financial�institution.�The�Court�therefore�held�that�the�ECB�had�been�correct�to�classify�the�applicant�as�a�‘significant�entity’�and�dismissed�the�action.�

In the cases that gave rise to the judgments of 13 December 2017, Crédit mutuel Arkéa v ECB (T-712/15, EU:T:2017:900), and of 13 December 2017, Crédit mutuel Arkéa v ECB (T-52/16, EU:T:2017:902), the Court was required to rule on the actions brought against the decisions of the ECB of, respectively, 5 October 2015 setting out the prudential requirements for the Crédit Mutuel group and of 4 December 2015 setting out new prudential requirements for that group and for the entities making up that group. The applicant disputed recourse to the consolidated prudential supervision of the Crédit Mutuel group put in place by the ECB, through the intermediary of the Confédération nationale du Crédit mutuel (CNCM), on the ground that the latter is not a credit institution, that no ‘Crédit Mutuel group’ exists and that the ECB could not impose additional capital requirements on it.

As regards the action brought against the decision of 5 October 2015, the Court considered that the applicant retained an interest in bringing proceedings against that decision in order to prevent the possible annulment of the�decision�repealing�it�resulting�in�its�producing�effects�again.�If�the�decision�of�4�December�2015�were�to�be�annulled, the parties would be restored to their original position prior to its entry into force, a position which would thus be governed again by the contested decision.

As regards the two actions brought against the decision of 5 October 2015 and the decision of 4 December 2015, the Court stated that, in order to comply with the aims of the basic regulation, Article 2(21)(c) of the SSM Framework

71/ �Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (OJ 2014 L 141, p. 1).





Regulation and the conditions laid down in Article 10(1) of Regulation (EU) No 575/2013 72 to which it referred must be interpreted in the light of the legislature’s intention to enable the ECB to have an overall picture of all the�risks�likely�to�affect�a�credit�institution�and�to�avoid�the�fragmentation�of�prudential�supervision�between�the�ECB�and�the�national�authorities.�As�regards�the�specific�aim�of�Article�10(1)�of�Regulation�No�575/2013,�the�Court�observed that that regulation concerned the prudential requirements applicable to credit institutions. In that context, the objective pursued by Article 10(1) of Regulation No 575/2013 was clearly apparent from its wording. It was to allow the competent authority to waive in part or in full the application of certain requirements set out in the regulation to one or more credit institutions situated in the same Member State which were permanently affiliated�to�a�central�body�that�supervised�them�and�was�established�in�the�same�Member�State.�Similarly,�under�Article 10(2) of that regulation, the competent authorities were able to waive the application of the same prudential requirements to the central body on an individual basis. However, in this case, the conditions laid down in Article 10(1) of Regulation No 575/2013 did not apply under that regulation for the purpose of assessing the possibility of waiving compliance with the requirements on an individual basis; they applied on account of the reference in Article 2(21)(c) of the SSM Framework Regulation for the purpose of determining whether a group subject to prudent supervision existed. It followed that, in this case, only the aims of Article 2(21)(c) of the SSM Framework Regulation were relevant to its interpretation, notwithstanding the reference therein to Article 10(1) of Regulation No 575/2013.

First of all, as regards the assertion that the CNCM was not a credit institution, the Court considered that it did not follow from the EU legislation on prudential supervision that the concept of ‘central body’ must be construed as meaning a body with the status of a credit institution. Next, the Court considered that Crédit Mutuel, via the CNCM,�fulfilled�all�the�conditions�laid�down�in�the�EU�legislation�on�prudential�matters�to�be�capable�of�being�classified�as�a�‘group’�for�the�purposes�of�that�legislation.�Last,�the�Court�considered�that�the�ECB�had�not�erred�in relying on the applicant’s possible departure from the Crédit Mutuel group in order to impose an additional capital requirement on it.

Thus the Court rejected the applicant’s arguments alleging that the CNCM did not have the status of a credit institution, that the group was not subject to prudential supervision within the meaning of Article 2(21)(c) of the SSM Framework Regulation and Article 10 of Regulation No 575/2013 and that additional capital requirements could not be imposed, and dismissed both actions in their entirety.

XII. PUBLIC PROCUREMENT BY THE INSTITUTIONS OF THE EUROPEAN UNION

In the case that gave rise to the judgment of 4 July 2017, European Dynamics Luxembourg and Others v European Union Agency for Railways (T-392/15, EU:T:2017:462), the Court was required to clarify the scope of the principle of the unfettered evaluation of evidence and of the contracting authority’s duty to state reasons when it considers that the successful tenderer’s bid does not appear to be abnormally low.

First, the Court observed that the prevailing principle of EU law on evidence was the principle of the unfettered taking of evidence, and that the corollary of that principle was the principle of the unfettered adduction of evidence, which conferred on the parties the possibility to produce before the Court any evidence lawfully obtained that

72/ � Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions�and�investment�firms�and�amending�Regulation�(EU)�No�648/2012�(OJ�2013�L�176,�p.�1,�corrigenda�OJ�2013�L�208,�p.�68�and� OJ 2013 L 321, p. 6).




they considered relevant to support their arguments. The principles of unfettered taking and unfettered adduction of evidence must, however, be reconciled with the fundamental principles of EU law, such as the right to a fair trial and equality of arms. Thus, the unfettered taking of evidence must be reconciled with the right for each party to�defend�its�interests�irrespective�of�any�outside�influences,�in�particular�on�the�part�of�the�public,�and�to�be�protected from the inappropriate use of its evidence. The Court inferred that it followed from the principle of the freedom to adduce evidence that a party before the Court was, in principle, entitled to rely on, as evidence, documents adduced in other legal proceedings in which it had itself been a party. Furthermore, the agreement of the party from which the evidence emanated could not be a precondition for the admissibility of evidence from another case before the Court. Although the agreement of the party from which the evidence emanated could be a relevant factor for the purpose of determining whether it was appropriate to use it, to require that that agreement was obtained as a precondition to its production before the Court on pain of inadmissibility would give the party from which it emanates the power to exclude it, depriving the Court of the opportunity to rule on whether�it�would�be�appropriate�to�use�it�and,�therefore,�to�fulfil�its�obligation�to�offer�each�party�a�reasonable�opportunity to present its case, including its evidence, under conditions that would not place it at a substantial disadvantage vis-à-vis his opponent, that being the basis of the principle of equality of arms. Therefore, it was for the Court, in each case, to weigh the freedom to adduce evidence, on the one hand, and, on the other, the protection against the inappropriate use of the procedural documents of parties to legal proceedings.

In this instance, the defendant disputed the production by the applicants of a copy of the report of the evaluation committee of the European Medicines Agency (EMA); the Court pointed out that the applicants had that report because they had submitted a tender following a call for tenders for a public contract organised by the EMA and that, as an unsuccessful tenderer, they had requested the reasons for the rejection of their tender. The applicants had therefore obtained that report by lawful means. The fact that the report had then been evidence in a case that had given rise to a judgment of the Court and that the applicants had not obtained the EMA’s consent to use�it�in�the�present�case�did�not�allow�its�use�to�be�classified�as�inappropriate.�Furthermore,�in�the�light�of�the�contents of that document and the applicants’ freedom to adduce evidence, the EMA could not validly refuse its disclosure to the defendant. Accordingly, rejecting the production of that document as inadmissible would have been�contrary�to�the�proper�administration�of�justice�in�that�it�would�have�unjustifiably�limited�the�applicants’�freedom to adduce evidence.

Second, the Court emphasised that the assessment by the contracting authority of the existence of abnormally low�tenders�is�made�in�two�stages.�In�the�first�stage,�the�contracting�authority�must�determine�whether�the�tenders submitted ‘appear’ to be abnormally low, that it to say, whether they contain indicia likely to arouse suspicion in that respect. That is the case, in particular, where the price proposed in a tender submitted is considerably less than that of the other tenders submitted or the normal market price. If there are no such indicia in the tenders submitted and they therefore do not appear to be abnormally low, the contracting authority may continue the evaluation and the award procedure for the contract. However, if there is such a suspicion, the contracting authority must, in the second stage, check the composition of the tender in order to ensure that it is not abnormally low. Since the obligation to state reasons must be assessed, in particular, in the light of the applicable�legal�rules,�the�existence�of�that�examination�in�two�stages�influences�the�scope�of�the�contracting�authority’s duty to state reasons. Thus, where a contracting authority accepts a tender, it is not required to state explicitly, in response to any request for a statement of reasons submitted to it in accordance with Article 113(2) of the Financial Regulation, 73 the reasons why the tender it accepted did not appear to it to be abnormally low. If that tender is accepted by the contracting authority, it implicitly, but necessarily, follows that the contracting

73/ �Regulation�(EU,�Euratom)�No�966/2012�of�the�European�Parliament�and�of�the�Council�of�25�October�2012�on�the�financial�rules�applicable�to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).



authority considered that there were no indicia that that tender was abnormally low. However, such reasons must be brought to the attention of an unsuccessful tenderer which expressly requests them.

XIII. ARBITRATION CLAUSE

In the case that gave rise to the judgment of 4 July 2017, Systema Teknolotzis v Commission (T-234/15, EU:T:2017:461), an�action�had�been�brought�before�the�Court�by�the�beneficiary�of�a�project�funded�by�the�European�Union�against an enforceable Commission decision ordering recovery of the sums unduly paid. The Commission claimed that�the�applicant’s�action�was�inadmissible�on�the�ground�that�the�contested�decision�merely�confirmed�its�earlier decisions refusing to grant payment facilities to the applicant.

The Court observed that, where there is a contract between the applicant and an EU institution, an action may be brought before the EU judicature on the basis of Article 263 TFEU only where the contested measure aims to produce�binding�legal�effects�falling�outside�the�contractual�relationship�between�the�parties�and�entailing�the�exercise of the prerogatives of a public authority conferred on the contracting institution acting in its capacity as an administrative authority. Were the European Union judicature to hold that it had jurisdiction to adjudicate on the annulment of acts falling within purely contractual relationships, not only would it risk rendering Article 272 TFEU — under which jurisdiction may be conferred on the European Union by means of an arbitration clause — meaningless, but it would also risk, where the contract does not contain such a clause, extending its jurisdiction beyond the limits laid down by Article 274 TFEU, which gives national courts or tribunals ordinary jurisdiction over disputes to which the European Union is a party.

A decision which is enforceable within the meaning of Article 299 TFEU, such as the decision at issue in the present case, constitutes a challengeable act within the meaning of Article 263 TFEU and the merits of such a decision can be disputed only before the court with jurisdiction to annul it. The Court considered that that was the case, in particular, when an enforceable decision had been adopted for the purposes of recovering a debt stemming from a contract concluded by an institution. The adoption of an enforceable decision constitutes the manifestation of�the�exercise�by�the�Commission�of�its�public�powers�and�definitively�establishes�its�intention�to�pursue�the�recovery of its debts.

First�of�all,�the�Court�observed�that,�in�order�for�the�contested�decision�to�be�treated�as�a�purely�confirmatory�decision, it was necessary, in particular, for the earlier measures adopted by the Commission to be decisions open to actions for annulment. However, the Commission’s refusals to grant payment facilities, which constituted the�earlier�measures�in�this�instance,�did�not�produce�binding�legal�effects�outside�the�contractual�relationship�between the Commission and the applicant. Next, those refusals did not involve the exercise of public powers conferred�on�the�Commission�and�they�could�not�therefore�be�classified�as�earlier�decisions�within�the�meaning�of�the�case-law�on�purely�confirmatory�measures.�Last,�there�could�be�no�question�of�a�circumvention�of�the�time�limit for bringing an action for annulment, since the refusals in question formed part of the contractual relationship between the Commission and the applicant and a dispute before the European Union judicature, under Article 272 TFEU, concerning contractual rights and obligations was not subject to the same procedural time limit. The Commission had therefore been incorrect to assert that the applicant’s action was inadmissible.




XIV. ACCESS TO DOCUMENTS OF THE INSTITUTIONS

In 2017 the General Court had the opportunity to deliver a number of important judgments concerning access to�documents.�It�adjudicated,�in�particular,�on�the�conditions�for�access�to�documents�in�the�administrative�file�in proceedings relating to abuse of a dominant position and also to those drawn up by a Member States in infringement�proceedings.�The�Court�also�provided�clarification�concerning�requests�for�access�to�documents�held by the European Chemicals Agency (ECHA) in a procedure relating to a request for authorisation to use a chemical substance and to documents relating to invitations to tender pertaining to all lots covered by a call for tenders.

1. DOCUMENTS IN THE ADMINISTRATIVE FILE IN PROCEEDINGS RELATING TO ABUSE OF A DOMINANT POSITION

In the case that gave rise to the judgment of 28 March 2017, Deutsche Telekom v Commission (T-210/15, EU:T:2017:224), the Court was required to examine the lawfulness of a decision whereby the Commission had rejected�the�applicant’s�request�for�access�to�all�the�documents�in�the�file�relating�to�the�investigation�for�abuse�of a dominant position opened in respect of the applicant. The Commission had rejected that request in reliance on�a�general�presumption�that,�in�principle,�the�disclosure�of�such�documents�would�adversely�affect�the�commercial�interests of the undertakings concerned and the protection of the purpose of inspections, investigations and audits.

The Court considered that the case-law relating to the general presumption recognised in relation to access to documents�in�the�case�file�prepared�in�proceedings�relating�to�cartels�must�be�applied�by�analogy,�and�for�the�same�reasons,�to�access�to�documents�in�a�case�file�in�a�proceeding�relating�to�abuse�of�a�dominant�position.�In�application�of�that�case-law,�the�Commission�is�entitled�to�presume,�without�carrying�out�a�specific�and�individual�examination of each of those documents, that their disclosure would, in principle, undermine the protection of the purpose of inspections and investigations as well as the protection of the commercial interests of the undertakings party to the proceedings, whether regarding documents that the Commission has exchanged with the parties to the proceedings or third parties or internal documents that the Commission has drawn up in order to conduct the proceedings in the case in point.

According to the Court, as regards procedures for the application of Article 102 TFEU, that presumption may arise from�Regulations�No�1/2003�and�No�773/2004,�which�specifically�regulate�the�right�to�consult�documents�in�the�Commission’s�file�relating�to�those�procedures.�In�fact,�generalised�access�on�the�basis�of�Regulation�(EC)�No 1049/2001 74 to the documents exchanged, in a proceeding pursuant to Article 102 TFEU, between the Commission and the parties concerned by that proceeding or third parties would jeopardise the balance which the EU legislature sought to ensure in Regulations No 1/2003 and No 773/2004 between the obligation for the undertakings concerned to submit what may be sensitive commercial information to the Commission and the guarantee of increased protection, by virtue of the requirement of professional secrecy and business secrecy, for the information so provided to the Commission. Observing, moreover, that, having regard to the nature of the interests protected, it must be held that the existence of a general principle applied irrespective of whether





the request for access concerned an investigation which had already been closed or one which was pending, the Court concluded, in this case, that the action must be dismissed.

2. DOCUMENTS DRAWN UP BY A MEMBER STATE IN THE CONTEXT OF A PROCEDURE FOR FAILURE TO FULFIL OBLIGATIONS

The case that gave rise to the judgment of 28 April 2017, Gameart v Commission (T-264/15, EU:T:2017:290), provided the Court with the opportunity to examine the novel question whether documents drawn up by a Member�State�in�the�context�of�a�procedure�for�failure�to�fulfil�obligations�may�be�regarded�as�documents�originating from an institution within the meaning of Article 5 of Regulation No 1049/2001, in such a way that that institution is competent to adjudicate upon the request for access to those documents, which was transferred to it by a Member State on the basis of the second paragraph of that provision. The case originated in a request submitted�by�the�applicant�to�the�Polish�Ministry�of�Foreign�Affairs�seeking�access�to�documents�relating�to�procedures conducted by the Commission concerning the infringement of EU law by the Polish legislation on gaming. The request concerned copies, in the Ministry’s possession, of the letters sent by the Republic of Poland to the Commission concerning those procedures. After the Ministry had forwarded that request to it, the Commission had refused access to the documents in question, relying in particular on the exception in the third indent of Article 4(2) of Regulation No 1049/2001, namely the protection of the purpose of inspections, investigations and audits. The applicant challenged that refusal and claimed that the Commission did not have competence to adopt a decision with regard to its request for access to the documents at issue, since they did not fall within the scope of Regulation No 1049/2001. In the applicant’s submission, the second paragraph of Article 5 of that regulation could not apply to those documents, since that provision concerned only documents originating from EU institutions.

In�that�regard,�the�Court�observed�that,�except�in�the�cases�specifically�set�out�in�Article�5�of�Regulation� No 1049/2001 and where that is imposed by the requirements of the obligation of sincere cooperation laid down in Article 4(3) TEU, requests for access to documents held by the national authorities, including when such documents originate from EU institutions, continue to be governed by the national rules applicable to those authorities and the provisions of Regulation No 1049/2001 have not replaced those rules. The Court noted that Article 5 of Regulation No 1049/2001 makes no provision for the possibility of forwarding to the Commission a request for access to documents which originate from a Member State. The wording of that article expressly states that its substantive scope is to be limited to documents ‘originating’ from EU institutions. Thus, the Commission was not competent to adjudicate upon the request for access to the documents at issue.

That�finding�could�not�be�called�into�question�by�the�argument�put�forward�by�the�Commission�and�the�interveners�that the Commission was competent to examine the request for access to the documents originating from the Republic of Poland since those documents were held by the Commission within the meaning of Article 2(3) of Regulation No 1049/2001. In order for the Commission to be competent to adopt a decision granting or refusing access to a document which it holds it must receive a request for access to that document validly submitted in accordance with Article 2(4) and Article 6 of Regulation No 1049/2001 by any natural or legal person referred to in Article 2(1) and (2) of that regulation, or validly forwarded by a Member State in accordance with Article 5 of that regulation. It was clear that, in this case, the Commission had not received a valid request either from the applicant or from the Republic of Poland.




3. DOCUMENTS HELD BY THE ECHA IN THE CONTEXT OF A PROCEDURE RELATING TO AN APPLICATION FOR AUTHORISATION TO USE A CHEMICAL SUBSTANCE

In the case that gave rise to the judgment of 13 January 2017, Deza v ECHA (T-189/14, EU:T:2017:4), an action had been brought before the Court for annulment of decisions whereby the ECHA had authorised third parties to have�access�to�certain�information�in�the�file�submitted�by�the�applicant�in�the�course�of�the�procedure�provided�for in Regulation (EC) No 1907/2006, 75 relating to an application for authorisation to use a chemical substance. In�support�of�its�action,�the�applicant�relied�in�particular�on�the�existence�of�a�general�presumption�of�confidentiality�of information submitted in the context of the authorisation procedure provided for in that regulation.

On that point, the Court observed that, unlike the situations in which the Court of Justice and the General Court had accepted that the general presumptions justifying refusal of access to documents applied, Regulation No 1907/2006 expressly governed the relationship between Regulation No 1907/2006 and Regulation No 1049/2001. Article 118 of Regulation No 1907/2006 provided that Regulation No 1049/2001 was to apply to documents held by�the�ECHA.�It�did�not�restrict�the�use�of�the�documents�in�the�file�relating�to�an�application�procedure�for�the�use of a chemical substance. No general presumption could therefore be inferred from the provisions of Regulation No 1907/2006. It could not therefore be accepted that, in the context of an authorisation procedure provided for in Regulation No 1907/2006, the documents communicated to the ECHA were to be regarded as being, in their entirety, clearly covered by the exception relating to the protection of the commercial interests of the applicants for authorisation. Although that exception was, where relevant, applicable to some of the documents communicated to the ECHA, that was not necessarily the case with regard to all of the documents or to the entire contents of those documents. The ECHA was, at the very least, under a duty to satisfy itself that the exception did�apply,�by�carrying�out�a�proper,�specific�examination�of�each�document,�as�required�by�the�first�indent�of�Article 4(2) of Regulation No 1049/2001.

The Court further observed that, although the principle that the public should have the widest possible access to the documents must in principle be respected with regard to the documents held by the ECHA, that principle was nonetheless subject to certain limits based on reasons of public or private interest. The Court considered, however, that in this case it did not appear that the disclosure of the mere compilation of descriptive data, which were�publicly�available,�was�sufficient�to�undermine�the�protection�of�the�applicant’s�commercial�interests.�According to the Court, it was only if the assessments made by the applicant when compiling that information provided�added�value�—�consisting�of,�for�example,�new�scientific�conclusions�or�considerations�relating�to�an�inventive strategy which gave the undertaking a commercial advantage over its competitors — that they would then have fallen within the scope of commercial interests protected by Article 4(2) of Regulation No 1049/2001.

75/ �Regulation�(EC)�No�1907/2006�of�the�European�Parliament�and�of�the�Council�of�18�December�2006�concerning�the�Registration,�Evaluation,�Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1, corrigendum OJ 2007 L 136, p. 3).




4. DOCUMENTS RELATING TO REQUESTS FOR QUOTATION PERTAINING TO ALL LOTS IN A CALL FOR TENDERS

In the case that gave rise to the judgment of 14 December 2017, Evropaïki Dynamiki v Parliament (T-136/15, EU:T:2017:915), the Court was required to examine the lawfulness of a decision whereby the Parliament had rejected the applicant’s request for access to the documents of the Parliament relating to the requests for quotation pertaining to all lots in a call for tenders made by the Parliament. The Parliament had rejected that request, relying, in particular, on the exception to the right of access relating to the protection of commercial interests.

As�regards�that�exception,�first,�the�Court�observed�that,�while�it�was�true�that�the�Court�of�Justice�had�recognised�the�existence�of�general�presumptions�of�confidentiality�applicable�to�categories�of�documents�because�of�their�nature in a number of cases, including where bids were submitted by tenderers in the context of the performance of public contracts, 76 in the case of requests for quotation, a general presumption that harm would be caused to commercial interests could not be based either on the case-law relating to access to the bids of tenderers or, more generally, on a line of reasoning analogous to that followed in the judgments in Commission v Technische Glaswerke Ilmenau, 77 concerning the procedure for review of State aid, and Commission v Éditions Odile Jacob, 78 concerning a merger. The cases that gave rise to those judgments had a common characteristic, namely the existence,�in�a�specific�regulatory�framework�distinct�from�Regulation�No�1049/2001,�of�rules�precisely�delimiting�access�to�the�file�or�to�the�documents�that�had�been�requested,�as�regards�both�the�persons�and�the�information�itself. Unlike a contract notice and a contract award notice, a request for quotation drawn up by the contracting authority in performance of a framework contract was not the subject of any particular provisions of the Financial Regulation or Delegated Regulation (EU) No 1268/2012 79�defining�or�specifically�limiting�the�information�contained�therein that must or may be communicated by the contracting authority to the tenderers or other bidders. The view could not therefore be taken that the Financial Regulation and the Delegated Regulation contained precise rules on the communication of information contained in requests for quotation drawn up by the contracting authority in performance of a framework contract.

Second, the Court emphasised that, having regard to the nature and purpose of a request for quotation drawn up by the contracting authority in performance of a framework contract, it could not be presumed that such a document�contained�economic�and�technical�information�concerning�the�contractor�or�detailed�its�specific�skill.�On the contrary, a request for quotation, which was issued by the contracting authority and not by its contractors, generally included a description of the tasks which the contracting authority wished to have carried out under the framework contract which it had signed with the contractor. In principle, it was only in response to that request for quotation that the contractor would provide details of the services which it considered it could provide to the contracting�authority,�the�profile�of�the�experts�whom�it�would�be�able�to�make�available�and�the�cost�of�its�services. Furthermore, the Parliament could not argue that the disclosure of the requests for quotation would undermine�its�own�interests,�in�that�disclosure�might�reveal�its�‘purchasing�profile’�on�the�market.�Consequently,�the�Parliament�had�not�been�entitled�to�rely�on�the�exception�to�the�right�of�access�set�out�in�the�first�indent�of�

76/ �See,�to�that�effect,�judgments�of�29�January�2013,�Cosepuri v EFSA, T-339/10 and T-532/10, EU:T:2013:38, paragraph 101, and of 21 September 2016, Secolux v Commission, T-363/14, EU:T:2016:521, paragraph 59.

77/ � Judgment of 29 June 2010, C-139/07 P, EU:C:2010:376.

78/ � Judgment of 28 June 2012, C-404/10 P, EU:C:2012:393.

79/ � Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of the Financial Regulation (OJ 2012 L 362, p. 1).








Article 4(2) of Regulation No 1049/2001 relating to the protection of commercial interests in order to refuse to carry�out�a�specific,�individual�examination�of�the�documents�to�which�access�had�been�requested.

Furthermore,�as�to�whether�a�derogation�from�the�obligation�to�carry�out�a�specific,�individual�examination�of�the documents concerned could be accepted because of an unreasonable workload, the Court took care to ascertain�whether�in�this�instance�the�three�cumulative�conditions�laid�down�in�the�case-law�were�satisfied,�namely,�first,�whether�the�workload�represented�by�the�specific,�individual�examination�of�the�documents�requested�was unreasonable, second, whether the Parliament had attempted to consult with the applicant and, third, whether�it�had�actually�envisaged�alternatives�to�a�specific,�individual�examination�of�the�documents�requested.�The Court considered that, in the very particular circumstances of this case, in the light of the amount of work entailed, the proposal made by the Parliament and the applicant’s attitude, the Parliament had been entitled to claim�an�unreasonable�workload�when�refusing�to�carry�out�a�specific,�individual�examination�of�all�the�documents�requested and was not required, in the absence of other conceivable options, to set out in detail, in its decision, the reasons why those alternatives would also entail an unreasonable workload. Consequently, the Parliament had been entitled generally to refuse access to those documents and there was no need to produce a copy of the documents which it had actually examined.

XV. CIVIL SERVICE

The�case-law�relating�to�the�civil�service�saw�a�number�of�significant�developments�in�2017.

In the case that gave rise to the judgment of 24 April 2017, HF v Parliament (T-584/16, EU:T:2017:282), the Court was required to adjudicate on an application for annulment of the decision of the Parliament not to renew the applicant’s�contract�as�a�member�of�the�contract�staff�for�auxiliary�tasks.

In that regard, the Court held that, in order for there to be a decision of the European Parliament’s authority empowered to conclude contracts (‘the AECE’) on the renewal of a contract, such a decision must have been the result�of�a�review�by�that�authority�of�the�interest�of�the�service�and�that�of�the�staff�member�concerned�and�the�AECE must have made a fresh assessment by reference to the terms of the initial contract containing at the outset the date on which the contract was to end. Thus, a decision in that respect could be attributed to the administration only�when�it�was�adopted�either�following�a�procedure�specifically�designed�for�that�purpose�or�in�response�to�the�request�of�the�person�concerned�submitted�pursuant�to�Article�90(1)�of�the�Staff�Regulations�of�Officials�of�the�European�Union�(‘the�Staff�Regulations’)�in�his�capacity�as�a�person�covered�by�the�Staff�Regulations.�

The Court further observed that, in a situation in which the AECE decided, in so far as such an option was provided for in the Conditions of Employment of Other Servants of the European Union (‘the CEOS’), not to avail itself of its�option�under�the�CEOS�to�extend�the�contract�of�employment�of�a�member�of�staff,�such�a�decision�not�to�renew could be adopted only after the person concerned had been able duly to put forward his point of view, and might take the form of a simple announcement by the AECE of its intention and its reasons for not availing itself of that option, as part of a written or verbal exchange, which might even be brief. That exchange must have been initiated by the AECE, which has the burden of proof. In this instance, the Court found that the AECE had infringed the applicant’s right to be heard. It considered, however, that even if the applicant had been given a formal hearing before the contested decision was adopted, in the light of the factors which she put forward at the�litigation�stage,�the�outcome�for�the�renewal�of�her�contract�would�not�have�been�different.�

In the case that gave rise to the judgment of 24 April 2017, HF v Parliament (T-570/16, EU:T:2017:283), an action had been brought before the Court against an alleged implied decision of the administration (in this instance, again,�the�Parliament’s�AECE)�rejecting�a�request�for�assistance�within�the�meaning�of�Article�24�of�the�Staff�Regulations on psychological harassment. This case provided the Court with the opportunity to clarify the scope





of a decision of the administration to open an administrative inquiry in response to such a request submitted pursuant�to�Article�90(1)�of�the�Staff�Regulations,�under�which�the�administration�is�given�a�period�of�four�months�within which to reply.

After referring to the case-law which shows that the administration must act promptly where there is prima facie evidence of psychological harassment, in order to shed light on the alleged facts, 80 the Court stated that where the AECE fails to respond in any way to a request for assistance within the four-month time limit laid down in Article�90(1)�of�the�Staff�Regulations,�it�may�be�held�that�there�has�been�an�implied�decision�by�that�authority�refusing the request for assistance. In that case, it must be presumed that that authority considered that the evidence produced in support of the request for assistance did not constitute some evidence of the reality of the alleged facts triggering the duty of assistance which, in this case, concerned the alleged disregard of Article 12a�of�the�Staff�Regulations.

The�Court�observed,�however,�that�such�a�situation�was�different�from�the�situation�at�issue�in�the�present�case,�in�which,�in�response�to�a�request�for�assistance,�the�AECE�had�considered�that�it�had�before�it�sufficient�evidence�to warrant opening an administrative inquiry in order to establish whether the facts alleged amounted to psychological�or�sexual�harassment�within�the�meaning�of�Article�12a�of�the�Staff�Regulations.�In�such�a�situation,�that�inquiry�must�be�allowed�to�run�its�course�so�that�the�administration,�enlightened�by�the�findings�of�the�inquiry�report,�may�adopt�a�definitive�position�in�that�regard�and�either�decide�to�take�no�action�in�response�to�the�request for assistance or, where the facts alleged have been established and come within the scope of Article 12a of�the�Staff�Regulations,�decide,�in�particular,�that�disciplinary�proceedings�are�to�be�initiated�so�that,�if�appropriate,�disciplinary sanctions may be imposed on the person alleged to be responsible. According to the Court, the very point�of�the�administrative�inquiry�is�to�confirm�or�rule�out�the�existence�of�psychological�harassment�within�the�meaning�of�Article�12a�of�the�Staff�Regulations.�Accordingly,�the�AECE�must�not�prejudge�the�outcome�of�the�inquiry�and�specifically�is�not�deemed�to�have�adopted�a�decision,�not�even�an�implied�decision,�on�the�reality�of�the alleged harassment before it has received the results of the administrative inquiry. In that regard, the Court made clear that the administration remains under a duty to conduct the administrative inquiry through to completion, irrespective of whether the alleged harassment has ceased in the meantime, and even when the party who made the request for assistance or the alleged harasser has left the institution. However, given that, unlike�in�disciplinary�proceedings,�the�Staff�Regulations�make�no�specific�provision�as�to�the�time�within�which�an administrative inquiry must be conducted by the administration, notably in cases involving psychological harassment, the fact that an administrative inquiry which had been opened in response to the request for assistance within four months after that request was made was still pending after that period had elapsed did not mean that it was possible to attribute to the administration an implied decision by which the AECE had found that the facts alleged in the request for assistance had not occurred or by which it had considered that those facts�did�not�constitute�psychological�harassment�within�the�meaning�of�Article�12a�of�the�Staff�Regulations.

In the case that gave rise to the judgment of 14 September 2017, Bodson and Others v EIB (T-504/16 and T-505/16, EU:T:2017:603),�the�Court�was�required�to�examine�the�application�of�the�applicants,�members�of�the�staff�of�the�European Investment Bank (EIB), for annulment of the decisions contained in their salary statements for February 2013 and subsequent months, applying to the applicants the decision of the EIB Board of Directors of 18 December 2012 and the decision of the EIB Management Committee of 29 January 2013. More particularly, the applicants claimed, by way of a plea of illegality, that those decisions, which the salary statements had applied, were illegal, on the ground that the decisions precluded the application of the method put in place by the decision of the EIB

80/ �Judgments�of�26�January�1989,�Koutchoumoff v Commission, 224/87, EU:C:1989:38, paragraphs 15 and 16; of 25 October 2007, Lo Giudice v Commission, T-154/05, EU:T:2007:322, paragraph 136; and of 6 October 2015, CH v Parliament, F-132/14, EU:F:2015:115, paragraph 87.






http://curia.europa.eu/juris/documents.jsf?language=EN&critereEcli=ECLI:EU:F:2015:115

Board of Directors of 22 September 2009, which was to apply for a period of seven years, under which the yearly adjustment�of�the�scale�of�basic�salaries�was�to�be�calculated�on�the�basis�of�the�rate�of�inflation�in�Luxembourg.

In that regard, the Court began by noting that, although the EIB did not dispute that the application of the 2009 method would have resulted in a greater increase in the scale of basic salaries than that which the applicants actually received, it claimed, in particular, that that method was not binding and that in any event it had been altered by the decisions challenged by the plea.

However,�the�Court�rejected�those�two�arguments.�As�regards,�first,�the�binding�nature�of�the�2009�method,�the�Court�recalled�that�the�EIB�has�a�discretion�in�establishing�and�unilaterally�changing�the�components�of�staff�remuneration�and,�consequently,�in�setting�and�updating�the�scale�of�basic�staff�salaries.�It�emphasised,�nonetheless,�that in the exercise of that discretion the EIB may determine in advance the criteria which are to apply for a given period�of�time�to�periodic�adjustments�of�the�scale�of�basic�staff�salaries�and�may�thus�commit�itself�to�observing�such criteria when making annual adjustments to the scale through the course of the relevant period. On the basis of those criteria, the Court considered that, by adopting the decision of 22 September 2009, the EIB, by a unilateral decision, had bound itself, for the period of validity of that decision, that is to say seven years, in the exercise of its discretion, to comply with the 2009 method. It could not therefore rely, in the context of the annual adjustment�of�the�scale�of�basic�staff�salaries,�on�a�discretion�going�beyond�the�criteria�laid�down�in�that�method.�

As regards, second, the alteration of the 2009 method by the decisions challenged by means of a plea, the Court observed that not only did the 18 December 2012 decision contain no provisions repealing, suspending or modifying the decision putting in place the 2009 method, but it also made no reference to that decision. The Court further emphasised that those decisions, although they had both been adopted by the same body and in accordance�with�the�same�procedure,�were�different�in�nature�and�had�distinct�purposes.�The�22�September�2009 decision, for all that it had been adopted in the context of preparing the budget for 2010, was regulatory in nature and multi-annual, inasmuch as it laid down a method for framing, over a number of years, the annual adjustment�of�one�of�the�components�of�staff�remuneration,�namely�the�scale�of�basic�salaries.�The�18�December�2012 decision, on the other hand, was essentially a budgetary measure adopting the EIB’s operational plan for 2013�to�2015�and�setting,�in�that�context,�the�rate�of�the�increase�in�the�budget�for�staff�costs�for�active�staff�members for one year, that is to say 2013. Nor was it argued that that decision contained any regulatory provisions relating�to�the�remuneration�of�EIB�staff.�In�those�circumstances,�the�Court�held�that�the�18�December�2012�decision�could�not�be�regarded�as�having�modified�the�2009�method.�The�same�applied�to�the�29�January�2013�decision, for the same reasons and a fortiori, inasmuch as it had emanated from the Management Committee and not the Board of Directors.

The Court therefore concluded that the decisions of 18 December 2012 and of 29 January 2013 had infringed the 22 September 2009 decision and were therefore illegal. The same applied to the decisions contained in the applicants’ salary statements for February 2013 and subsequent months taken on the basis of those decisions.

In the judgment of 26 October 2017, Paraskevaidis v Cedefop (T-601/16, EU:T:2017:757), the Court adjudicated on an action for (i) annulment of the decision of the Director of the European Centre for the Development of Vocational Training (Cedefop) of 4 November 2015 not to promote the applicant to Grade A 12 in the 2015 promotion exercise and (ii) compensation for the damage which the applicant claimed to have sustained as a result of that decision. The applicant maintained, in particular, that the contested decision was vitiated by a failure to�state�reasons.�In�that�regard,�he�claimed,�first,�that�the�decision�was�simply�a�list�of�officials�who�had�been�promoted and, second, that since the decision rejecting his complaint was an implied decision, it did not contain the slightest reasoning.

The Court recalled that, although the appointing authority was not obliged to give reasons for a promotion decision, either to its addressee or to the candidates who were not promoted, it was, however, obliged to state the�grounds�for�its�decision�rejecting�a�complaint�lodged�pursuant�to�Article�90(2)�of�the�Staff�Regulations�by�a�




candidate who had not been promoted, the grounds for that rejection decision being deemed to be identical to the grounds for the decision against which the complaint had been made. Thus, the statement of reasons must be communicated no later than the rejection of the complaint. The Court stated, moreover, that a decision must be�considered�to�contain�a�sufficient�statement�of�reasons�where�it�was�adopted�in�a�context�known�to�the�official�concerned which allowed him to understand the scope of the measure taken concerning him. Having regard, however, to the importance of the obligation to state reasons with regard to the rights of the defence, it was only exceptionally�that�the�context�in�which�a�decision�not�to�promote�an�official�had�been�taken,�which�had�been�implicitly upheld after a complaint had been lodged, might constitute the initial elements of a statement of reasons for that decision. Thus, the initial elements of a statement of reasons could not exist in the absence of any indication�by�the�appointing�authority�concerning�the�applicant’s�specific�situation�and�the�comparison�of�his�merits�with�those�of�other�officials�eligible�for�promotion�in�the�light�of�the�criteria�in�Article�45�of�the�Staff�Regulations.

In this case, the Court considered that the mere presence of critical comments in the applicant’s evaluation reports and in certain emails and letters, sometimes very old, relating to the applicant, had not enabled the applicant�to�understand�how�the�criteria�laid�down�in�Article�45�of�the�Staff�Regulations�had�been�applied�to�his�situation,�justifying,�on�completion�of�a�comparison�of�the�merits�of�the�officials�eligible�for�promotion�for�the�2015 promotion exercise, the decision not to promote him. On the contrary, it was only by bringing proceedings before the Court that the applicant had been able to understand, on reading the explanations in Cedefop’s defence, the way in which the criticisms against him had been taken into account in applying to his situation the criteria�for�evaluating�the�merits�for�promotion�laid�down�in�Article�45�of�the�Staff�Regulations.�It�followed�that�the context in which the contested decision had been adopted could not be regarded as a statement of reasons, even�an�insufficient�statement�of�reasons,�for�that�decision.�Consequently,�the�Court�annulled�the�contested�decision on the ground that there had been a total failure to state reasons, as such an illegality could not be made good at the stage of the judicial proceedings.

As�regards�the�claim�for�compensation�for�the�damage�which�the�applicant�claimed�to�have�suffered�as�a�result�of the adoption of the contested decision, the Court considered that, since that decision was vitiated by a failure to state reasons and must be annulled on that ground, it was not in a position to assess the substance of the decision following an examination of the pleas relating to the substantive illegality of the decision and could not conclude�that�the�applicant�had�suffered�specific�damage�as�a�result�of�the�refusal�to�promote�him.�As�regards�the part of the non-material damage resulting from the failure to state reasons in the contested decision, the Court considered that the applicant had been placed in a situation of uncertainty as to the reasons why he had not been promoted well beyond the period within which the answer to his complaint should have been provided, which forced him to bring judicial proceedings in order to obtain an explanation in that regard. The feelings of injustice,�confusion�or�indeed�frustration�thus�experienced�by�the�applicant�had�caused�him�specific�non-material�damage which could not be adequately made good by the annulment of the contested decision alone. In those circumstances, the Court, assessing ex æquo et bono�the�damage�suffered,�considered�that�an�award�of�EUR�2�000�constituted adequate compensation for the part of the non-material damage resulting from the failure to state reasons in the contested decision alleged by the applicant.

In the case that gave rise to the judgment of 5 December 2017, Tuerck v Commission (T-728/16, EU:T:2017:865), the�Court�was�required�to�adjudicate�on�an�application�for�annulment�of�a�Commission�decision�confirming�the�transfer to the European Union pension scheme of the pension rights acquired by the applicant before she entered the service of the Union. The case allowed the Court to clarify the rules for calculating the capital to be taken into account for the purposes of recognising, in the EU pension scheme, the pension rights previously acquired�by�an�official�in�a�national�scheme.�

The�applicant�claimed�principally�that�the�Commission’s�Office�for�‘Administration�and�Payment�of�Individual�Entitlements’ (PMO) had not been entitled to deduct from the capital transferred by the Deutsche Rentenversicherung Bund�(Federal�Pension�Insurance�Office,�Germany),�as�it�had�done,�simple�interest�of�3.1%�per�annum�in�respect�




of the period between the date on which the application for a transfer had been made and the date of the actual transfer. In that regard, the applicant maintained that, under Article 7(1) of the General Implementing provisions for�Articles�11�and�12�of�Annex�VIII�to�the�Staff�Regulations,�81 deduction of the amount representing capital appreciation between the date of the application for transfer and the date of the actual transfer could be made on a ‘lump sum’ basis only where the body with which the prior pension rights had been acquired was unable to supply the value of those rights on the date of registration of the application to transfer those rights. According to the applicant, however, the national body had in fact supplied the PMO with the value of her pension rights on the date of registration of her transfer application.

The Court considered that it was apparent from the clear and precise wording of the applicable provisions, namely Article�11(2)�of�Annex�VIII�to�the�Staff�Regulations�and�Article�7(1)�of�the�General�Implementing�provisions�for�Articles�11�and�12�of�Annex�VIII�to�the�Staff�Regulations,�that�decisions�crediting�pensionable�years�were�based�on the amount of transferable capital on the date of registration of the application, as supplied to the appointing authority by the competent national or international authorities, after deduction, where applicable, of the amount representing capital appreciation between the date of registration of the application and the date of actual transfer. It was also apparent from those provisions that it was only where the competent national or international body was unable to supply the value of the pension rights on the date of registration of the application that simple interest at the rate of 3.1% would be deducted from the updated capital actually transferred. Thus, the Court concluded that, in a situation where the competent national or international authorities had supplied the appointing authority with the value of the pension rights on the date of registration of the application, the appointing authority was not entitled to make any deduction from that amount and the calculation of the years of pensionable service under�the�Staff�Regulations�must�therefore�be�made�on�the�basis�of�the�full�amount.�According�to�the�Court,�the�only�deduction�required�by�the�Staff�Regulations�was�that�of�the�amount�representing�capital�appreciation�between�the date of the transfer application and the actual date of transfer of the capital updated to that date. In any event, it was not for the Commission to determine or to ‘update’ the actual amount of capital representing the pension rights acquired, on the date of registration of the transfer application, on the basis of the previous activities�of�the�official�concerned.�Consequently,�by�deducting�from�the�updated�capital�actually�transferred�simple interest of 3.1% per annum between the date on which the transfer application had been made and the date of the actual transfer, even though, in the particular circumstances of this case, the national insurance body concerned had not been unable to supply it with the value of the pension rights acquired by the applicant on the date of registration of her application, the Commission had erred in law.

In the case that gave rise to the judgment of 13 December 2017, Arango Jaramillo and Others v EIB (T-482/16 RENV, EU:T:2017:901), the Court was required to examine the applicants’ application for, in particular, annulment of the decisions of the EIB, contained in their salary statements for February 2010, to increase their contributions to the pension scheme. Concerning the concept of a ‘reasonable period’ for bringing an action applicable to disputes�between�the�EIB�and�its�staff,�this�case�follows�on�from�the�case�that�gave�rise�to�the�judgment�in�Réexamen Arango Jaramillo and Others v EIB, 82 whereby the Court of Justice had set aside the judgment in Arango Jaramillo and Others v EIB. 83�According�to�the�Court�of�Justice,�that�judgment�had�affected�the�coherence�of EU law, in that it had interpreted the concept of a ‘reasonable period’ as a period of three months, and that the automatic consequence of that period being exceeded was that the action was out of time and therefore inadmissible, without the European Union judicature’s needing to take into consideration the circumstances of the case.

81/ �General�implementing�provisions�for�Articles�11�and�12�of�Annex�VIII�to�the�Staff�Regulations,�adopted�by�Commission�Decision�C(2011)�1278 of 3 March 2011, published in Administrative Notices No 17-2011 of 28 March 2011.

82/ � Judgment of 28 February 2013, C-334/12 RX-II, EU:C:2013:134.

83/ � Judgment of 19 June 2012, T-234/11 P, EU:T:2012:311.






In that regard, the Court began by recalling that, while no provision of EU law contained any indication of the period�for�bringing�an�action�applicable�to�disputes�between�the�EIB�and�its�staff,�the�need�to�reconcile�the�right�to�effective�judicial�protection�and�the�requirement�for�legal�certainty�required�that�those�disputes�be�brought�before the Court within a reasonable period. Next, examining whether the action might be considered to have been brought within a reasonable period, the Court considered that, taking into account the particular circumstances of the case and the case-law which had established in favour of the applicants a strong presumption that the indicative period for bringing an action, namely three months plus a standard time for distance of 10 days, was reasonable, the applicants’ action, which had been brought within a period of three months and 11 days, must be considered to have been brought within a reasonable period. The Court made clear, moreover, that the period for bringing an action, as established in the case-law, of three months, plus the standard time for distance of 10 days, could not apply in the present case as a limitation period, but could serve only as a relevant point of comparison. In that context, the Court noted that the EIB had put forward no argument to show that the fact that that period had been exceeded by one day (indeed by a few seconds during the night of 25 to 26 May 2010) had�been�sufficient�to�remove�the�‘reasonable’�character�from�the�period�in�question,�in�the�sense�that�that�difference�might�in�fact�undermine�the�requirement�for�legal�certainty�designed�to�ensure�that,�after�a�certain�period�has�elapsed,�the�acts�adopted�by�the�EU�bodies�become�definitive.

XVI. ACTIONS FOR DAMAGES

In the cases that gave rise to the judgments of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union (T-577/14, under appeal, 84 EU:T:2017:1); of 1 February 2017, Aalberts Industries v European Union (T-725/14, EU:T:2017:47); of 1 February 2017, Kendrion v European Union (T-479/14, under appeal, 85 EU:T:2017:48); and of 17 February 2017, ASPLA and Armando Álvarez v European Union (T-40/15, under appeal, 86 EU:T:2017:105), the Court adjudicated on applications under Article 268 TFEU for compensation for the harm which the applicants claimed to have sustained owing to the excessive duration of the proceedings before the General Court in various cases relating to the application of Article 101 TFEU.

The�Court�recalled,�first�of�all,�that�the�European�Union�may�incur�non-contractual�liability�when�three�cumulative�conditions�are�fulfilled,�namely�(i)�the�conduct�of�the�institution�concerned�must�be�unlawful,�(ii)�actual�damage�must�have�been�suffered�and�(iii)�there�must�be�a�causal�link�between�the�conduct�and�the�damage�pleaded.

As�regards�the�first�condition,�the�Court�considered,�in�the�judgment�of�10�January�2017,�Gascogne Sack Deutschland and Gascogne v European Union (T-577/14, under appeal, 87 EU:T:2017:1), that the right to adjudication within a reasonable period had been breached as a result of the excessive length of the proceedings in the cases that gave rise to the judgments in Groupe Gascogne v Commission and Sachsa Verpackung v Commission. 88 In those cases�the�proceedings�had�lasted�for�almost�5�years�and�9�months�and�that�period�could�not�be�justified�by�any�of�the�specific�circumstances�of�those�cases.�In�particular,�the�Court�noted�that,�in�the�field�of�competition�law,�a�

84/ �Cases�C-138/17�P,�European Union v Gascogne Sack Deutschland and Gascogne and Case C-146/17 P, Gascogne Sack Deutschland and Gascogne v European Union.

85/ �Case�C-150/17�P,�European Union v Kendrion.

86/ � Case C-174/17 P, European Union v ASPLA and Armando Álvarez and Case C-222/17 P, ASPLA and Armando Álvarez v Europea Union.

87/ � Cases C-138/17 P, European Union v Gascogne Sack Deutschland and Gascogne and Case C-146/17 P, Gascogne Sack Deutschland and Gascogne v European Union.

88/ �Judgments�of�16�November�2011,�T-72/06,�not�published,�EU:T:2011:671, and of 16 November 2011, T-79/06, not published, EU:T:2011:674.










field�which�displays�a�greater�degree�of�complexity�than�that�of�other�types�of�cases,�a�period�of�15�months�between the end of the written phase of the procedure and the opening of the oral phase of the procedure constituted in principle an appropriate period. However, a period or approximately 3 years and 10 months, that is to say, 46 months, had separated those two phases of the procedure in the cases concerned. Nonetheless, the Court considered that the parallel treatment of related cases might justify an increase in the length of the proceedings, by a period of one month per additional related case. Thus, in this instance, the parallel treatment of�12�actions�brought�against�the�same�Commission�decision�had�justified�an�increase�of�11�months�in�the�length�of the proceedings in the cases in question. The Court concluded that a period of 26 months (15 months plus 11 months) between the end of the written phase of the procedure and the opening of the oral part of the procedure had been appropriate in order to deal with the cases concerned, given that the degree of factual, legal and�procedural�complexity�in�those�cases�had�not�justified�a�longer�period.�It�followed,�according�to�the�Court,�that the period of 46 months between the end of the written phase of the procedure and the opening of the oral phase�of�the�procedure�had�indicated�an�unjustified�period�of�inactivity�of�20�months�in�each�of�the�two�cases�concerned. Consequently, the procedure followed in the cases that gave rise to the judgments in Groupe Gascogne v Commission and Sachsa Verpackung v Commission 89 had infringed the second paragraph of Article 47 of the Charter of Fundamental Rights in that it had exceeded by 20 months the reasonable period for judgment, which constituted�a�sufficiently�serious�breach�of�a�rule�of�EU�law�designed�to�confer�rights�on�individuals.�

On the basis of analogous reasoning, concerning in particular the period between the end of the written phase of�the�procedure�and�the�opening�of�the�oral�phase,�the�Court�made�the�same�finding,�in�the�judgments of 1 February 2017, Kendrion v European Union (T-479/14, under appeal, 90 EU:T:2017:48), and of 17 February 2017, ASPLA and Armando Álvarez v European Union (T-40/15, under appeal, 91 EU:T:2017:105), as regards the procedure followed in the cases that had given rise to the judgment in Kendrion v Commission, 92 and the judgments in ASPLA v Commission and Álvarez v Commission, 93 respectively.

In the judgment of 1 February 2017, Aalberts Industries v European Union (T-725/14, EU:T:2017:47), on the other hand, the Court rejected the assertion that there had been an infringement of the reasonable period for delivering judgment in the case that had given rise to the judgment in Aalberts Industries and Others v Commission. 94 While acknowledging that the proceedings in that case, which had lasted more than 4 years and 3 months, were at�first�sight�of�a�very�long�duration,�the�Court�nonetheless�emphasised�that�the�reasonableness�of�the�period�for�delivering�judgment�must�be�appraised�in�the�light�of�the�circumstances�specific�to�each�case�and,�in�particular,�the importance of the case for the person concerned, its complexity, the conduct of the parties and supervening procedural matters, and also the conduct of the competent authorities. The Court considered that the total length�of�the�proceedings�in�the�case�in�question�had�been�justified�in�the�light�of�the�circumstances�specific�to�that case and, in particular, its factual and legal complexity, the conduct of the parties and the absence of any unexplained period of inactivity at any stage of the proceedings in that case.


90/ �Case C-150/17 P, European Union v Kendrion.

91/ �Cases C-174/17 P, European Union v ASPLA and Armando Álvarez and Case C-222/17 P, ASPLA and Armando Álvarez v Europea Union.

92/ �Judgment�of�16�November�2011,�T-54/06,�not�published,�EU:T:2011:667.














As�regards�the�second�condition�that�must�be�satisfied�in�order�for�the�European�Union�to�incur�liability,�the�Court�held, in the judgments of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union (T-577/14, under appeal, 95 EU:T:2017:1), and of 1 February 2017, Kendrion v European Union (T-479/14, under appeal, 96 EU:T:2017:48),�that�the�applicants�had�shown�that�they�had�suffered�actual�and�certain�damage�as�a�result of paying bank guarantee charges during the period by which the reasonable time for adjudicating had been�exceeded.�In�addition,�the�Court�considered�that�the�applicants�had�suffered�non-material�damage.�

Last,�as�regards�the�third�condition,�the�Court�held�that�that�consideration�was�also�satisfied,�because�there�was�a�sufficiently�direct�causal�link�between�the�breach�of�the�obligation�to�adjudicate�within�a�reasonable�period�and�payment of the bank guarantee charges by the applicants during the period by which the reasonable time for adjudication had been exceeded. The Court further stated that the failure to adjudicate within a reasonable time had been such as to put the applicants in a position of uncertainty greater than that normally engendered by court proceedings. That prolonged state of uncertainty had inevitably had an impact on decision-making and the running of those companies and had therefore constituted non-material damage that also had to be made good. The Court therefore awarded the applicants compensation corresponding to the amount of the bank guarantee�charges�which�they�had�paid�and�compensation�to�make�good�the�non-material�damage�suffered�as�a result of the prolonged state of uncertainty in which they had found themselves.

The�question�of�compensation�for�the�damage�allegedly�suffered�as�a�result�of�the�excessive�duration�of�the�proceedings was also at the origin of the judgment of 7 June 2017, Guardian Europe v European Union (T-673/15, under appeal, 97 EU:T:2017:377), where the issue was the length of the proceedings before the General Court in the case relating to the application of Article 101 TFEU that had given rise to the judgment in Guardian Industries and Guardian Europe v Commission. 98

Adopting similar reasoning to that applied in the judgment of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union (T-577/14, under appeal, 99 EU:T:2017:1), the Court held that the procedure followed in Guardian Industries and Guardian Europe v Commission had infringed the second paragraph of Article 47 of the Charter of Fundamental Rights in that it had exceeded by 26 months the reasonable time for adjudicating, which�constituted�a�sufficiently�serious�breach�of�a�rule�of�EU�law�intended�to�confer�rights�on�individuals.�According�to�the�Court,�there�was�a�sufficiently�direct�causal�link�between�the�infringement�of�the�obligation�to�adjudicate�within a reasonable time in the case in question and the loss sustained by the applicant before judgment was given in that case, consisting in the payment of bank guarantee charges during the period corresponding to the time by which that reasonable period had been exceeded. Thus, compensation of EUR 654 523.43 was awarded to the applicant by way of reparation for the material damage caused to it by the infringement of the obligation to adjudicate within a reasonable time in the that case.

95/ �Cases C-138/17 P, European Union v Gascogne Sack Deutschland and Gascogne and Case C-146/17 P, Gascogne Sack Deutschland and Gascogne v European Union.

96/ � Case C-150/17 P, European Union v Kendrion.

97/ � Cases C-447/17 P, European Union v Guardian Europe and Case C-479/17 P, Guardian Europe v European Union.

98/ �Judgment�of�27�September�2012,�Guardian Industries and Guardian Europe v Commission, T-82/08, EU:T:2012:494.

99/ �Cases C-138/17 P, European Union v Gascogne Sack Deutschland and Gascogne and Case C-146/17 P, Gascogne Sack Deutschland and Gascogne v European Union.








In the case that gave rise to the judgment of 7 June 2017, Guardian Europe v European Union (T-673/15, under appeal, 100 EU:T:2017:377), the Court was also required to adjudicate on the applicant’s claim for compensation for the damage allegedly sustained as a result of the breach of the principle of equal treatment in the decision whereby�the�Commission�had�imposed�a�fine�on�it�for�infringement�of�the�competition�rules�101 and in the judgment in Guardian Industries and Guardian Europe v Commission. 102

As�regards,�first,�the�existence�of�a�sufficiently�serious�infringement�of�the�principle�of�equal�treatment�in�the�decision�whereby�the�Commission�had�imposed�a�fine�on�the�applicant�for�infringement�of�the�competition�rules,�the Court considered that the applicant could not validly maintain that the bank guarantee costs which it had paid were the direct consequence of the unlawfulness of that decision. The damage which it alleged was the direct and conclusive consequence of its own decision, following the adoption of the decision in question, not to comply�with�its�obligation�to�pay�the�fine�in�full.�Accordingly,�the�existence�of�a�sufficiently�direct�causal�link�between�the�alleged�sufficiently�serious�infringement�of�the�principle�of�equal�treatment�in�the�decision�and�payment of bank guarantee costs was rejected. The Court further observed that it was apparent from the documents produced by the applicant that the applicant had not personally borne the burden linked to the payment�of�the�fine�imposed�by�the�decision�in�question.�The�applicant�clearly�could�not�therefore�claim�that�it�had�sustained�actual�and�certain�damage�consisting�in�the�difference�between,�on�the�one�hand,�the�interest�repaid�by�the�Commission�on�the�part�of�the�fine�ultimately�held�not�to�be�due�by�the�Court�of�Justice�in�its�judgment in Guardian Industries and Guardian Europe v Commission 103 and, on the other, the income which it could have earned if, instead of paying the sum at issue to the Commission, it had invested it in its business. As regards�the�non-material�damage�allegedly�suffered,�the�Court�stated�that,�even�on�the�assumption�that�the�alleged�sufficiently�serious�infringement�of�the�principle�of�equal�treatment�in�the�Commission�decision�had�caused damage to the applicant’s reputation, which had not been proved, it must be held that, having regard to the nature and gravity of that infringement, the non-material damage sustained by the applicant would have been�sufficiently�made�good�by�the�annulment�of�that�decision�and�by�the�reduction�of�the�amount�of�the�fine�by the Court of Justice in the judgment in Guardian Industries and Guardian Europe v Commission. 104

As regards, second, the alleged infringement of the principle of equal treatment in the judgment of 27 September 2012, Guardian Industries and Guardian Europe v Commission (T-82/08, EU:T:2012:494), the Court observed that the European Union could not incur liability for the content of a judicial decision that had not been delivered by a Court of the European Union adjudicating at last instance and could therefore be subject to an appeal. The Court�emphasised,�moreover,�that�in�this�case�the�error�in�the�judgment�of�the�General�Court�had�been�rectified�by the Court of Justice following the applicant’s appeal. However, the Court made clear that that observation was without�prejudice�to�the�possibility�for�the�applicant�to�seek,�in�exceptional�cases,�a�finding�that�the�European�Union was liable on account of serious failures in the functioning of the judicial process, in particular of a procedural or�administrative�nature,�affecting�the�activity�of�a�Court�of�the�European�Union.�However,�such�failures�had�not�been alleged by the applicant in this particular case, which related to the content of a judicial decision. Consequently, the claim for compensation for the alleged damage caused by a serious infringement of the principle of equal treatment was rejected.

100/ � Cases C-447/17 P, European Union v Guardian Europe and Case C-479/17 P, Guardian Europe v European Union.

101/ �Commission�Decision�C(2007)�5791�final�of�28�November�2007�relating�to�a�proceeding�under�Article�[101�TFEU]�and�Article�53�of�the�EEA Agreement (Case COMP/39165 – Flat glass).

102/ �Judgment�of�27�September�2012,�T-82/08,�EU:T:2012:494.

103/ �Judgment of 12 November 2014, C-580/12 P, EU:C:2014:2363

104/ �Judgment�of�12�November�2014,�C-580/12�P,�EU:C:2014:2363.








XVII. APPEALS

Among the decisions delivered by the Appeal Chamber of the General Court in 2017, two judgments merit special mention.

In�the�first�place,�in�the�judgment�of�27�June�2017,�Ruiz Molina v EUIPO (T-233/16 P, EU:T:2017:435), the Court held that there was nothing to preclude the withdrawl of a lawful or unlawful administrative act which, vis-à-vis the person�to�whom�it�is�addressed,�primarily�constituted�an�act�adversely�affecting�him�and�incidentally�created�rights for him if there was no breach of his legitimate expectations and if the principle of legal certainty was not infringed.�In�this�case,�after�finding�that�the�decision�to�terminate�the�applicant’s�contract�as�a�member�of�the�temporary�staff�constituted�primarily�an�administrative�act�adversely�affecting�a�staff�member�and�that�it�had�incidentally�created�rights�for�him,�the�Court�held,�likewise,�that�by�signing�a�reinstatement�agreement,�the�staff�member had shown his approval of the withdrawal of the termination decision. Consequently, the withdrawal of that�decision�had�complied�with�the�principle�of�protection�of�the�legitimate�expectation�of�that�staff�member�and with the principle of legal certainty. The Civil Service Tribunal had therefore been entitled to consider that the termination decision had been withdrawn. Furthermore, as regards the legal consequences of its withdrawal, in so far as the termination decision had been deemed never to have existed, the Civil Service Tribunal had been entitled�to�consider�that�the�staff�member’s�reinstatement�had�had�the�effect�of�putting�him�back�in�the�position�in�which�he�had�been�on�the�date�on�which�his�fixed-term�contract�as�a�temporary�staff�member�had�been�terminated and not of renewing that contract for a second time.

In the second place, in the judgment of 7 December 2017, Missir Mamachi di Lusignano and Others v Commission (T-401/11 P-RENV-RX, EU:T:2017:874),�first,�the�Court�considered�that,�where�an�institution�was�liable�for�breach�of�an�obligation�to�provide�protection�that�had�contributed�to�causing�the�specific�harm�that�that�obligation�had�been intended to prevent, it was appropriate to consider that this breach, even if it could not be regarded as the sole�cause�of�the�harm,�might�make�a�sufficiently�direct�contribution�to�that�harm.�Thus,�the�act�of�a�third�party,�whether foreseeable or unforeseeable, might be considered by a court not to be capable of either interrupting the causal link or constituting a circumstance that wholly exonerated the institution from liability, as both causes, namely the failure on the part of the institution and the act of a third party, had contributed to the same harm. In the light of those considerations, in the exercise of its appellate jurisdiction, the Court found that, in this case, the Civil Service Tribunal, without erring in law, had in essence applied the theory of equivalent conditions and, furthermore,�the�causal�link�established�by�the�Civil�Service�Tribunal�in�the�judgment�at�first�instance�between�the Commission’s negligence and the damage sustained had not been called into question by the Commission. Thus, the Court considered that the Civil Service Tribunal had not erred when it had held that, where a fault consisted�in�a�breach�of�an�obligation�of�protection�that�had�contributed�to�causing�the�specific�damage�that�the�obligation had been intended to prevent, even though the institution could not be held to be the person mainly responsible for the harm, that institution must be regarded as having jointly caused the damage. Second, the Court considered that a common general principle arose from the laws of the Member States, namely that in circumstances comparable to those of the present case, the national courts recognised that the joint authors of the same damage were jointly and severally liable, as the courts considered it fair that the injured person should not have to determine the proportion of damage for which each of the co-authors had been liable and to bear the risk that the person against whom it took proceedings would be insolvent. In the light of those considerations, the Court held that Civil Service Tribunal had erred in law in limiting to 40% the Commission’s contribution to making�reparation�for�the�material�damage�suffered�by�the�four�children�of�the�deceased�official�who�had�been�the victim of a breach of an obligation of protection. Accordingly, the Court ordered the Commission to pay, jointly and�severally,�the�sum�of�EUR�3�million,�less�the�payments�made�pursuant�to�the�Staff�Regulations�which�were�considered to form part of that amount that had been or would be paid to the four children of the deceased official.�Third,�the�Court�held�that�the�laws�of�the�Member�States�did�not�disclose�a�common�general�principle�that, in circumstances comparable to those of the present case, a national court would have awarded compensation





for�the�alleged�non-material�damage�suffered�by�the�deceased�official.�Fourth,�the�Court�held�that�the�laws�of�the�Member States gave rise to a common general principle that, in circumstances comparable with those of the present�case,�the�presence�of�a�scheme�guaranteeing�the�automatic�payment�of�benefits�to�those�entitled�to�claim�under�a�deceased�official�(i.e.�his�descendants)�did�not�preclude�those�persons,�if�they�considered�that�the�damage sustained was not covered or was not fully covered by that scheme, from also obtaining compensation for their non-material harm by means of an action before a national court. In that regard, the laws of the Member States also contained a common general principle that the non-material damage sustained could not be the subject of double compensation. Accordingly, it was for the Court to ascertain the extent to which a scheme guaranteeing�the�automatic�payment�of�benefits�covered�in�whole,�in�part�or�not�at�all�the�non-material�damage�suffered�by�those�entitled�to�claim,�before�determining�the�amount�of�the�compensation�for�that�damage.�Last,�it followed from the laws of the Member States that the principle of joint and several liability applicable to the material damage in circumstances comparable to those of the present case also applied to the non-material damage.�The�Court�held�that�that�reasoning�was�also�valid�for�the�deceased�official’s�relatives�in�the�ascending�line.

XVIII. APPLICATIONS FOR INTERIM MEASURES

In�2017�the�Court�received�47�applications�for�interim�measures,�representing�a�significant�increase�by�comparison�with the number of applications lodged in 2016 (34). Likewise, the number of orders made and cases closed also rose�significantly.�In�2017,�56�orders�were�made,�105 as against 25 in 2016, and 53 cases were closed, as against 20 in 2016. In eight cases the Court made a suspension order under Article 157(2) of the Rules of Procedure.

The orders made cover a wide range of matters, but mainly competition law and State aid (four cases), restrictive measures (eight cases), public contracts (six cases) and institutional law (11 cases). As regards the proceedings concerning�institutional�law,�it�should�be�noted�that�a�relatively�significant�number�of�cases�related�to�the�status�of Members of the European Parliament 106 and the funding of foundations or European parties. 107

105/ ��This�figure�corresponds�to�all�orders�made�by�the�judge�hearing�applications�for�interim�measures,�excluding�orders�stating�that�there�is no need to adjudicate and orders removing the case from the register, but including orders made pursuant to Article 157(2) of the Rules of Procedure and the made by the Vice-President of the General Court, replacing the President of the General Court in accordance with Article 157(4) in conjunction with Article 11 of the Rules of Procedure, namely the orders of 10 April 2017, Exaa Abwicklungsstelle für Energieprodukte v ACER (T-123/17 R, not published, EU:T:2017:277); of 21 April 2017, Post Telecom v EIB (T-158/17 R, not published, EU:T:2017:281); and of 26 September 2017, Wall Street Systems UK v ECB (T-579/17 R, not published, EU:T:2017:668) — under appeal, Case C-576/17 P(R), Wall Street Systems UK v ECB.

106/ � Orders of 16 February 2017, Troszczynski v Parliament, T-626/16 R, not published, EU:T:2017:92; of 16 February 2017, Le Pen v Parliament, T-140/16 R II, not published, EU:T:2017:93; of 16 February 2017, Gollnisch v Parliament, T-624/16 R, not published, EU:T:2017:94; of 6 April 2017, Le Pen v Parliament, T-86/17 R, not published, EU:T:2017:270; of 26 June 2017, Jalkh v Parliament, T-27/17 R, not published, EU:T:2017:431; and of 26 June 2017, Jalkh v Parliament T-26/17 R, not published, EU:T:2017:432.

107/ � Orders of 14 March 2017, ADDE v Parliament, T-48/17 R, not published, EU:T:2017:170, and of 4 July 2017, Institute for Direct Democracy in Europe v Parliament, T-118/17 R, not published, EU:T:2017:465.














The President of the General Court granted two applications for suspension of operation, by orders of 18 May 2017, RW v Commission (T-170/17 R, not published, EU:T:2017:351), 108 and of 25 August 2017, Malta v Commission (T-653/16 R, not published, EU:T:2017:583).

By the order of 18 May 2017, RW v Commission (T-170/17 R, not published, EU:T:2017:351), 109 the President of the General�Court�ordered�suspension�of�the�operation�of�the�Commission�decision�whereby�the�applicant,�an�official�aged�63�years,�had,�pursuant�to�Article�42c�of�the�Staff�Regulations,�been�placed�on�leave�in�the�interests�of�the�service and at the same time had automatically been retired.

Article�42c�was�inserted�in�the�Staff�Regulations�when�they�were�last�amended�by�Regulation�(EU,�Euratom)�No 1023/2013. 110 After examining the condition relating to a prima facie case, the President of the General Court concluded�that�the�applicant�had�shown�that�there�was�a�significant�legal�issue�the�solution�to�which�was�not�immediately obvious and which merited a detailed examination that must be the subject of the main proceedings. At�first�sight,�both�the�wording�of�Article�42c�of�the�Staff�Regulations�and�the�general�structure�of�the�provisions�governing�retirement�and�the�definitive�termination�of�duties�argued�in�favour�of�Article�42c�of�the�Staff�Regulations�being�interpreted�as�meaning�that�an�official�who�had�already�reached�the�minimum�retirement�age,�in�accordance�with�Article�23�of�Annex�XIII�to�the�Staff�Regulations,�could�not�be�placed�on�leave�in�the�interests�of�the�service�and at the same time be automatically retired.

By the order of 25 August 2017, Malta v Commission (T-653/16 R, not published, EU:T:2017:583), the President of the General Court ordered suspension of the operation of the Commission decision whereby the Commission, on�the�basis�of�Regulation�No�1049/2001�and�following�the�confirmatory�application�submitted�by�Greenpeace,�had�granted�access�to�documents�originating�with�the�Republic�of�Malta�concerning�fishing�for�bluefin�tuna.

After examining the condition relating to a prima facie case, the President of the General Court concluded that the�Republic�of�Malta�had�established�the�existence�of�difficult�legal�and�factual�issues,�the�solution�to�which�was�not immediately obvious and called for a detailed examination that must be the subject of the main proceedings.

In his analysis, the President of the General Court rejected at the outset the Commission’s argument that the Republic of Malta’s pleas were inadmissible on the ground that they did not fall within the substantive exceptions to access to documents set out in Article 4(1) to (3) of Regulation No 1049/2001. In that regard, the President of the General Court observed that the Commission’s argument would result in its decisions relating to access to documents not being, to a large extent, amenable to judicial review and that such an outcome appeared, prima facie, to be irreconcilable with the settled case-law of the Court of Justice, according to which the European Union is a union based on the rule of law in which all acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights.

As regards the claim alleging infringement of Article 113 of Regulation (EC) No 1224/2009 111 concerning some of the documents referred to in the contested decision, the President of the General Court pointed out that Article 113 of Regulation No 1224/2009 contains no reference to Regulation No 1049/2001 and provides, in paragraphs

108/ �The�appeal�was�dismissed�by�order�of�10�January�2018,�Commission v RW, (C-442/17 P(R), not published, EU:C:2018:6).

109/ �Ibid.

110/ �Regulation�(EU,�Euratom)�No�1023/2013�of�the�European�Parliament�and�of�the�Council�of�22�October�2013�amending�the�Staff�Regulations�of�Officials�of�the�European�Union�and�the�Conditions�of�Employment�of�Other�Servants�of�the�European�Union�(OJ�2013�L�287,�p.�15).

111/ � Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules�of�the�common�fisheries�policy,�amending�Regulations�(EC)�No�847/96,�(EC)�No�2371/2002,�(EC)�No�811/2004,�(EC)�No�768/2005,�(EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1).








2 and 3, that the data exchanged between Member States and the Commission are not to be transmitted to persons other than those in Member States or EU institutions whose functions require them to have such access and are not to be used for any purpose other than that provided for in that regulation. The President of the General Court concluded that the manner in which Regulations No 1224/2009 and No 1409/2001 must be reconciled was not immediately obvious, which was particularly true given that Article 113 of Regulation No�1224/2009�was�a�sector-specific�rule�adopted�a�number�of�years�after�the�entry�into�force�of�Regulation�No 1049/2001.

As regards the argument alleging that the Commission had failed to examine with due diligence the scope of the request�for�access�to�documents�and�that�it�had�identified�121�documents�during�the�confirmatory�stage�as�falling�under that request, the President of the General Court concluded that it could not be excluded that the sending of�all�documents�originating�from�the�Republic�of�Malta�relating�to�bluefin�tuna�would�be�outside�the�scope�of�the�request�for�access�to�documents�and�therefore�indicated�the�existence�of�a�difficult�factual�issue,�the�solution�to which was not immediately obvious and merited a detailed examination, which could not be carried out by the judge hearing the application for interim measures, but must be the subject of the main proceedings.

Among the cases in which the application for interim measures was rejected, mention should be made, in particular, of the series of cases relating to the employment of assistants of the Members of the Parliament (‘MEPs’) and the cases relating to the auctioning of transport capacity of the OPAL pipeline.

In the cases that gave rise to the orders of 16 February 2017, Troszczynski v Parliament (T-626/16 R, not published, EU:T:2017:92); of 16 February 2017, Le Pen v Parliament (T-140/16 R II, not published, EU:T:2017:93); of 16 February 2017, Gollnisch v Parliament (T-624/16 R, not published, EU:T:2017:94); 112 and of 6 April 2017, Le Pen v Parliament (T-86/17 R, not published, EU:T:2017:270), a number of MEPs had sought suspension of the operation of the decisions�of�the�Secretary-General�of�the�Parliament�ordering�recovery�from�them,�by�way�of�set-off,�of�the�sums�unduly paid by way of parliamentary assistance expenses: monthly deduction of 50% of the parliamentary allowance, monthly deduction of 100% of the general expenditure allowance and deduction of 50% of the subsistence allowance.

In�order�to�show�that�the�condition�relating�to�urgency�was�satisfied,�the�applicants�had�argued,�in�particular,�that�recovery�by�set-off�would�not�allow�them�to�exercise�their�parliamentary�mandate�effectively�and�independently.

The President of the General Court rejected the four applications for interim measures, stating that it had not been�shown�that�the�deductions�adversely�affected�the�effective�exercise�of�the�mandate�as�an�MEP�in�such�a�way as to establish urgency. In that regard, he observed that it followed both from the rules applicable to MEPs and�from�the�Parliament’s�practice�that�recovery�by�set-off�required�a�weighing-up�of,�on�the�one�hand,�the�institution’s duty to recover the sums unduly paid and, on the other, the obligation to ensure that the MEP concerned�would�be�able�to�exercise�his�mandate�effectively.�In�those�circumstances,�the�fact�that�the�Parliament�had�recovered�the�sums�in�question�by�set-off�could�not�in�itself�be�regarded�as�an�act�that�would�adversely�affect�the�effective�exercise�by�the�applicants,�in�complete�independence,�of�their�mandate�as�MEPs.

The President of the General Court observed, next, that, as regards the monthly deduction of 50% of the parliamentary�allowance,�the�applicants�had�failed�to�explain�how�that�reduction�would�have�had�the�effect�of�preventing them from exercising to the full their parliamentary duties. As regards the monthly deduction of 100% of the general expenditure allowance, the President of the General Court noted that the MEPs concerned (Mr Jean-Marie Le Pen, Mr Bruno Gollnisch and Ms Marine Le Pen) had not claimed that the standard allowance was in reality, in part, disguised remuneration. Thus, because MEPs were allowed to claim reimbursement of expenditure actually�incurred,�which�ensured�that�there�would�be�no�obstacle�to�the�effective�exercise�of�their�mandate,�it�

112/ �The�appeal�was�dismissed�by�order�of�6�July�2017,�Gollnisch v Parliament (C-189/17 P(R), not published, EU:C:2017:528).








could not be concluded that the monthly deduction of 100% of the general expenditure allowance would adversely affect�the�effective�exercise�of�their�mandate�as�MEPs.�Likewise,�because�MEPs�were�allowed�to�claim�reimbursement�of the expenditure actually incurred, the President of the General Court found that the deduction of 50% of the subsistence�allowance�would�also�not�adversely�affect�the�effective�exercise�of�their�mandate�as�MEPs.

In the cases that gave rise to the orders of 21 July 2017, Polskie Górnictwo Naftowe i Gazownictwo v Commission (T-130/17 R, EU:T:2017:541); of 21 July 2017, Poland v Commission (T-883/16 R, EU:T: 2017:542); and of 21 July 2017, PGNiG Supply & Trading v Commission (T-849/16 R, EU:T:2017:544), the President of the General Court examined the applications for suspension of operation of the Commission’s decision to open to competition 50% of the unused capacity of the OPAL pipeline, the eastern on-shore section of the Nord Stream 1 pipeline used to transport natural gas from Russia to western Europa via the Baltic Sea.

After noting that two contracts concluded by Gazprom, namely a transit contract for the transport of natural gas via the Polish section of the Yamal-Europe pipeline to supply the western European markets (including the Polish market) and a contract concluded with PGNiG Supply & Trading GmbH for deliveries of natural gas, were applicable until 2020 and the end of 2022 respectively, the President of the General Court concluded that the use of the transport capacity of the Polish section of the Yamal-Europe pipeline and Gazprom’s deliveries to the Polish market were, prima facie, guaranteed until those years. Accordingly, even if the harm alleged by the Republic of Poland and the two applicant companies were shown to the requisite standard to be certain, that harm could not occur, at the earliest, until those contracts had expired. Given the average length of proceedings before the General Court, the judgments on the substance in those cases would probably be delivered during 2019.

As regards the argument that the contested decision permitted the conclusion of private-law contracts, the annulment of which would no longer have been possible even if the decision were subsequently annulled, the President of the General Court observed that, in such circumstances, remedies would be available against the implementation of those measures.

Consequently, the President of the General Court dismissed the applications for suspension of operation, as the applicants had not succeeded in adducing sound evidence that they could not wait for the outcome of the main proceedings without incurring serious and irreparable damage of contents.





C/ACTIVITY OF THE REGISTRY OF THE GENERAL COURT IN 2017


C/ ACTIVITY OF THE REGISTRY OF THE GENERAL COURT IN 2017

By Mr Emmanuel COULON, Registrar of the General Court

The Registry of the General Court, situated at the heart of the administration of justice, has, this year once more, been at the service of a changing court. The General Court is enlarging and changing in step with the implementation of the reform of the judicial architecture of the Court of Justice of the European Union, with the aim of doubling, in three successive phases, the number of judges of the General Court by 2019. 1 Proceedings before the General Court are becoming more varied and, in some respects, increasingly complex. It is in this context that the Registry has made the changes which will enable it to continue to perform the tasks entrusted to it and successfully to complete�the�first�two�phases�of�the�reform.

The�2017�results�are�positive�for�the�General�Court.�The�challenges�presented�by�the�first�two�phases�of�the�reform have been met. Although the number of cases submitted (917) remained slightly higher than the number of cases closed (895), which explains the small increase in the number of pending cases (1 508), the duration of proceedings has continued to decrease while, as the percentage of judgments entirely or in part set aside by the Court of Justice shows, the quality of the decisions has been maintained.

Keen to make optimal use of the 72 budgetary posts which it has held since 1 January 2016 and as an integral part of the life of the General Court, the Registry has contributed to this success and it can be stated with satisfaction�that,�at�the�end�of�2017,�the�results�show�that�the�Registry�fulfilled�the�tasks�entrusted�to�it�by�the�relevant provisions and by the General Court itself, while observing the requirements of a fair hearing.

The Registry has once again provided decisive judicial and administrative assistance to the General Court:

• by�ensuring�the�proper�conduct�of�proceedings�and�the�proper�keeping�of�files;

• by ensuring communication between the representatives of the parties and the judges;

• by�actively�assisting�the�judges�and�their�staff;

• by running the General Court under the authority of its President and with the assistance of the departments of the Court of Justice of the European Union.

Those results are undoubtedly the fruit of the contribution, which must be applauded, of the men and women who�make�up�the�Registry.�Consistent�in�its�daily�dedication,�the�staff�of�the�Registry�has�directed�all�its�efforts�to�working�effectively�with�all�the�actors�involved.

The activities of the Registry have been achieved with rigour, a sure sense of the general interest, an ambition to provide an exemplary service in the interests of justice and a constant concern to optimise the Court’s time. The Registry has always tried to deal with the pleadings within an appropriate time and has continued to develop a system to identify proceedings of excessive length and to alert the persons concerned so that they may remedy the situation.

1/ �Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ 2015 L 341, p. 14) and Regulation (EU, Euratom) 2016/1192 of the European Parliament�and�of�the�Council�of�6�July�2016�on�the�transfer�to�the�General�Court�of�jurisdiction�at�first�instance�in�disputes�between�the�European Union and its servants (OJ 2016 L 200, p. 137).



I. ORGANISATIONAL IMPLICATIONS OF THE ENTRY INTO OFFICE OF TWO NEW JUDGES

Two�new�judges�were�appointed�and�entered�into�office�at�the�General�Court�in�2017�as�part�of�the�second�phase�of the reform. This second phase, which included the appointment of seven additional judges to the General Court�and�the�transfer�to�the�General�Court�of�the�power�to�rule�at�first�instance�in�disputes�between�the�European�Union and its servants, is therefore complete. The appointment of the judge still missing for completion of the composition of the judicial body of 47 judges, as provided for in Article 48 of the Protocol on the Statute of the Court�of�Justice�of�the�European�Union,�will�be�made�at�the�appropriate�time�as�part�of�the�first�phase.�2

The Irish and Belgian judges were appointed on 29 March and 6 September 2017 respectively and were sworn in on 8 June and 4 October 2017 respectively. From 44 judges, the number of judges of the General Court has been increased, following those appointments, to 46.

Although the arrival of two new judges was not comparable with that of the 22 new judges which took place during�2016,�certain�measures�were�still�necessary�for�their�integration,�and�that�of�their�staff,�to�be�successful.

After�each�entry�into�office,�the�General�Court�assigned�each�new�judge�to�a�chamber,�created�new�case�portfolios�and reallocated the cases among the judges. In accordance with the Rules of Procedure of the General Court, the Registry informed the parties in the cases concerned and published the decisions taken by the General Court assigning the judges to chambers in the Official Journal of the European Union. 3 The Registry accordingly updated all internal databases when each reallocation of cases was made.

The�entry�into�office�and�the�installation�of�new�judges,�and�the�staff�of�their�chambers,�in�premises�equipped�for that purpose have also required the administrative assistance of the Registry. That has meant both preparatory work�with�the�departments�of�the�Court�of�Justice�of�the�European�Union,�a�specific�introduction�and�support�for�the�persons�concerned�and�strict�monitoring�of�staff�assignment.

II. TASK OF ASSISTING THE GENERAL COURT

Background

In 2017, the Registry performed its task of assisting the General Court by handling 917 applications initiating proceedings. At 98 cases, most of which form part of a series of cases in which the legality of decisions relating to the resolution scheme adopted by a Spanish bank, Banco Popular Español, SA, is called into question, this year�disputes�in�the�banking�and�financial�sector�have�become�the�second�most�common�subject�of�litigation�after�that�of�intellectual�property�(298�cases).�At�86�cases,�the�number�of�incoming�staff�cases�has�decreased�in�

2/ �At�31�December�2017,�a�judge�from�among�the�12�additional�Judges�whose�appointment�was�provided�for�as�part�of�the�first�phase�of�the�reform was still to be appointed.

3/ � Decisions of the General Court of 8 June 2017 (OJ 2017 C 213, p. 2) and of 4 October 2017 (OJ 2017 C 382, p. 2) concerning the assignment of judges to chambers.



comparison with previous years (167 cases in 2015 and 117 cases in 2016). 4 Each of these three areas of litigation (among�the�45�areas�covering�the�cases�currently�pending)�has�specific�features�which�have�required�the�Registry�to�apply�specific�ways�of�handling�them�during�the�past�year.

In addition, the Registry has registered 55 0700 procedural documents in 22 languages (of the 24 languages of the case provided for in the Rules of Procedure), handled 4 449 pleadings (other than applications) produced in pending cases, implemented the decisions taken by the chambers of the General Court, in the form of measures of organisation of procedure or measures of inquiry and issued 1 485 notices to the Official Journal of the European Union.

It is, of course, not possible to state here all the information allowing the measure of the work done by the Registry of the General Court to be taken; identifying some of them, in particular the statistics, does, however, enable the size of its workload to be seen:

• the�9�756�procedural�documents�filed�include�565�applications�for�leave�to�intervene�(a�number�unprecedented�in�the�history�of�the�Court)�and�212�requests�for�confidential�treatment�vis-à-vis�the�parties�or�the�public;

• the�archives�of�cases�under�examination�represent�652�linear�metres�of�files�of�documents;

• a number of appeals have been lodged, sometimes involving 1 000 or more appellants, requiring the Registry to make extensive checks;

• the conduct of the proceedings involving groups or series of cases has required coordination both within the Registry itself, having regard to the multiple languages of the cases, and with the chambers of the Court, for the processing of applications for time extensions, joinder, leave to intervene and possible confidential�treatment�in�each�of�those�cases;

• the Registry provided its service for hearings in 390 cases, some of which were conducted over a full day or several days;

• the Registry provided its service for 405 chamber conferences;

• hundreds of measures of organisation of procedure and dozens of measures of inquiry have been decided upon or ordered as regards, in particular, the production of documents which had been claimed to be confidential.

Furthermore, the logistical support provided by the Registry in various forms (coordination assistance, documentation, notification�of�procedural�case-law,�management�of�information�systems,�production�of�statistics)�has�enabled�the General Court to work in the best possible conditions again this year, in particular by contributing to the quality of the decisions taken by the President of the General Court and the chambers of the Court or by assisting the Vice-President in performance of the task of supporting consistency of the case-law, with which he was entrusted in September 2016.

4/ �In�2015,�staff�cases�were�brought�before�the�Civil�Service�Tribunal.�In�2016,�those�cases�were�brought�before�the�Civil�Service�Tribunal�until�the dissolution of that court and, from 1 September 2016, before the General Court.



Digitisation of the stages of the General Court’s procedure

In�performing�its�task�of�assisting�the�General�Court,�the�Registry�has�been�able�to�continue�to�benefit,�during�the past year, from the digitisation of almost all the stages of the General Court’s procedure, including exchanges, internally, with the judges’ chambers and, externally, with the representatives of the parties. This digitisation was, moreover,�extended�in�2017�to�the�transmission�by�the�European�Union�Intellectual�Property�Office�(EUIPO)�of�files�of�proceedings�before�the�Board�of�Appeal.�The�provision�of�information�was�further�improved�over�the�past�year�thanks�to�the�availability�of�a�modernised�version�of�the�‘Electronic�file’�IT�application�for�cases.

That digitisation has most certainly enabled the Registry, in everyone’s interest, to be relieved of repetitive tasks, giving it the means not only to personalise to a greater extent the response expected from it but also to concentrate its resources on the matters that actually so warrant.

In respect of internal communication between the Registry and the chambers of the General Court’s judges, the success of digital transmission sheets 5 must be highlighted once again following the third full year of their use. Internal�procedures�have�been�simplified,�working�methods�rationalised,�resources�saved�and�time�gained�as�a�result of the immediacy of communication between the Registry and the judges’ chambers. Digitisation means, furthermore,�that�communications�are�fully�traceable�and�that�activity�can�be�quantified.�In�2017,�the�Registry�sent 12 930 sheets to chambers in connection with cases in progress. That information alone shows a substantial increase in communication between the Registry and the chambers, the increase being around 19% compared with 2016.

Communication with the representatives of the parties is now for the most part carried out by means of e-Curia, 6 an application common to the institution’s Courts. The percentage of procedural documents lodged by means of this application has grown ceaselessly since its launch in November 2011, as has the number of lawyers and agents having an account giving access to it. In 2017, 83% of the procedural documents lodged with the General Court were lodged by this electronic means (compared to 76% in 2016), corresponding to 805 768 pages. 7

All Member States and 3 707 lawyers and agents now have an e-Curia account.

Although the success of the e-Curia computer application is undeniable, it is clear that the fact that 17% of procedural documents are still lodged in paper form does mean that it is not possible to reap the full practical benefits�of�this�application,�in�particular�by�avoiding�the�administration�of�paper�and�electronic�formats�in�parallel.�It should be noted that, during 2017, after a training initiative by the Registry, the Single Resolution Board (SRB) has agreed to request the opening of an account for access to e-Curia and thereby has made possible the e-service of hundreds of procedural documents.

The development of the e-Curia application is ongoing, but progress remains slow. Therefore, resolute action will be taken by the Court in 2018 in order to attain the objective of 100% of procedural documents being lodged by means of that application.

5/ �Communication between the Registry and the chambers of the General Court’s judges takes place in the form of transmission sheets intended to provide information or obtain a decision from the competent organ on a procedural question. These sheets have been in paperless form since November 2014.

6/ �Decision of the General Court of 14 September 2011 on the lodging and service of procedural documents by means of e-Curia (OJ 2011 C 289, p. 9).

7/ �By extrapolation, the number of pages of procedural documents lodged with the General Court in 2017 was around one million.



Implementation of the 2015 procedural arsenal

2017 was the second full year of implementation of the Rules of Procedure which entered into force on 1 July 2015.

The�objectives�pursued�of�simplification�and�rationalisation�may�objectively�be�regarded�as�having�been�attained.�The procedural instruments adopted by the General Court in 2015 have been used in full and are perfectly suited to�the�specific�features�of�cases�brought�before�it.

The lessons learned which merit a mention are:

• confirmation�of�the�significant�reduction�in�the�number�of�orders�prepared�by�the�Registry�(317�as�against�521 in 2015), 8 despite the high number of ongoing cases;

• development of the resolution of direct actions by judgment without a hearing, 9 this possibility having been applied on 54 occasions (and on 152 occasions in intellectual property cases);

• confirmation�that�the�new�language�arrangements�applicable�to�intellectual�property�cases�have�avoided�a considerable number of interventions by the Registry, as well as decisions of the Presidents of the chambers, and have led to the near disappearance of observations on the language of the case (22 as against 279 in 2015);

the fact that the absence of a second exchange of pleadings in intellectual property cases has not led to an increase in the number of applications for a hearing to be held and has contributed to a reduction in the average duration of proceedings in these cases disposed of by judgment.

In addition, the rule providing that, where the defendant lodges a plea of inadmissibility or of lack of competence, a decision on the application to intervene is not to be given until after a decision on the plea has been given has freed�the�Court�from�having�to�rule�in�a�significant�number�of�applications�of�that�kind�where�the�plea�was�upheld.�Finally,�and�in�an�entirely�different�area,�namely�that�of�the�Civil�Service,�the�General�Court�has�set�in�motion�a�number of amicable dispute settlement procedures, some of which have been successful.

However, it should be noted that the number of applications needing to be put into order because they did not comply with the formal requirements, which had reduced in 2016, has increased again across all categories of cases.

Unquantifiable and constant assistance

The�Registry�has�assisted�all�the�formations�of�the�General�Court�in�their�daily�work,�as�well�as�staff�of�the�chambers�which they comprise. As a result, they have been able, this year as well, to rely on the constant availability of the persons�working�in�the�department�and�on�their�expertise�in�the�field�of�procedural�technique.�It�has�been�noted�that�the�greater�number�of�judges�and�their�staff,�resulting�from�the�implementation�of�the�reform,�has�very�significantly�increased�the�number�of�internal�requests�to�the�Registry.�At�the�same�time,�showing�its�flexibility,�the�Registry�has�continued�to�look�for�synergies�and�efficiency�by�seeking�adaptability�to�circumstances�and�improvements in its working methods.

8/ �Since 1 July 2015, certain decisions previously taken in the form of orders (stay and resumption, joinder of cases, intervention by a Member State�or�institution�where�confidentiality�is�not�raised)�have�been�taken�in�the�form�of�a�simple�decision�which�is�placed�in�the�case�file.

9/ �Before 1 July 2015, the possibility of adjudicating by judgment without a hearing was provided for only in respect of intellectual property cases and appeals against decisions of the Civil Service Tribunal.



Finally, the Registry, via its representatives, continues to provide assistance to the General Court’s Committee responsible for matters of procedure and to other committees and fora on the basis of the needs or the nature of the work.

III. ADMINISTRATIVE ASSISTANCE

As an administrative department, this year once again the Registry has responded to the various external calls made upon it. Steps have also been taken, in coordination with various other administrative departments of the institution, with a view to:

• complying with the new regulatory requirements to protect the environment (the ‘EMAS’ scheme — Eco-Management�and�Audit�Scheme)�by�various�measures�to�raise�awareness�and�a�series�of�very�specific�measures, in particular abandoning the distribution in paper format of documents produced by the Registry (various sets of statistics and the judicial calendar) in favour of electronic distribution;

• giving�full�effect�to�the�arrangements�made�to�ensure�the�protection�of�particularly�sensitive�data�generated�in cases brought before the Court (data whose disclosure would harm the security of the European Union or that of one or more of its Member States or the conduct of their international relations);

• ensuring compliance with the rules on the protection of personal data.

Furthermore, the functioning of the Registry and its follow-up of cases has drawn the attention of the European Court of Auditors in a procedure examining performance as regards case management at the Court of Justice of the European Union. In particular, the auditors checked whether the relevant procedures enabled cases to be handled�efficiently�and�whether�the�time�taken�to�resolve�them�could�be�improved�further.�The�Special�Report�was adopted by the Court of Auditors in September 2017, then presented and discussed before the European Parliament and the Council of the European Union.

Among the proposed improvements, the Court of Auditors has put forward the possibility of installing an integrated IT system to support case management. In that regard, as stated by the Court of Justice of the European Union in�its�observations,�that�invitation�to�study�or�to�establish,�in�the�light�of�the�specificities�of�the�judicial�work�and�characteristics of each of the courts, an integrated IT system was welcomed. For its part, the Registry of the General Court is a support department which wishes to complete the digitisation of the court proceedings in order�to�reap�the�expected�benefits�thereof.�Thus,�in�2018�it�will�continue�to�work�to�that�end�with�the�departments�of�the�Court�of�Justice�of�the�European�Union�and�will�continue�its�efforts�towards�the�integration�of�case�management and the modernisation of the system of communication with the parties.

In addition, the Registry has implemented various measures of cooperation in a spirit of dialogue and receptiveness. Thus, in October 2017, in continuation of the communication that began in June 2014 with the Registry of the Boards of Appeal of EUIPO, a meeting was organised between representatives of the two Registries and between representatives of the departments responsible for new technologies. That meeting enabled the relevant departments�not�only�to�have�constructive�and�beneficial�contact,�but�also�to�finalise�projects�agreed�upon�in�previous meetings and to provide paths for future consideration.

In the same vein, the Registry has also drawn its inspiration from other courts. In that respect, the visit of a delegation from the Registry to the Registry of the European Court of Human Rights has led to a better understanding of the functioning of the latter, in particular as regards the IT tools at its disposal.



Finally, the Registry is, of course, a department which listens to the representatives of the parties, the lawyers and agents of the Member States and the institutions, with whom it maintains a daily and direct dialogue.

An increase in the Registry's workload, resulting from the increase in the number of judges in 2016 and 2017 and from the increase in litigation and the number of cases under investigation, is to be anticipated, notwithstanding the�potential�effects�of�a�transfer�of�powers�from�the�Court�of�Justice�to�the�General�Court,�which�is�apparently�not ruled out by the report sent on 14 December 2017 to the European Parliament, the Council and the Commission. 10 Accordingly, the Registry will continue to adapt and be organised in such a way as to meet future events with serenity.

10/ �Report on possible changes to the distribution of competence for preliminary rulings under Article 267 of the Treaty on the Functioning of the European Union, produced pursuant to Article 3(2) of Regulation 2015/2422.

D/STATISTICS CONCERNING THE JUDICIAL ACTIVITY OF THE GENERAL COURT

I. �General activity of the General Court — New cases, completed cases, cases pending (2013–17) � 209

II. �New cases — Nature of proceedings (2013–17) � 210

III. �New cases — Nature of proceedings (2013–17) � 211

IV. �New cases — Subject matter of the action (2013–17) � 212

V. �Completed cases — Nature of proceedings (2013–17) � 213

VI. �completed cases — Subject matter of the action (2017) � 214

VII. �Completed cases — Subject matter of the action (2013–17) � 215

VIII. �Completed cases — Bench hearing action (2013–17) � 216

IX. �Completed cases — Duration of proceedings in months (2013–17) � 217

X. �Duration of proceedings in months (2013–17) � 218

XI. �Cases pending as at 31 December — Nature of proceedings (2013–17) � 219

XII. �Cases pending as at 31 December — Subject matter of the action (2013–17) � 220

XIII. �Cases pending as at 31 December — Bench hearing action (2013–17) � 221

XIV. �Miscellaneous — Proceedings for interim measures (2013–17) � 222

XV. �Miscellaneous — Expedited procedures (2013–17) � 223

XVI. �Miscellaneous — Appeals against decisions of the General Court to the Court of Justice (1990–2017) � 224

XVII. �Miscellaneous — Distribution of appeals before the Court of Justice according to the nature of the proceedings (2013–17) � 225

XVIII. �Miscellaneous — Results of appeals before the Court of Justice (2017) � 226

XIX. �Miscellaneous — Results of appeals before the Court of Justice (2013–17) � 227

XX. �Miscellaneous — General trend (1989–2017) � 228

XXI. Activity of the Registry of the General Court (2015–17) � 229

XXII. �Methods of lodging procedural documents before the General Court � 230

XXIII. �Number of pages lodged by e-Curia (2013–17) � 231

XXIV. �Notices in the Official Journal of the European Union (2013–17) � 232

XXV. Number of cases pleaded (2013–17) � 233





0

200

400

600

800

1 000

1 200

1 400

1 600

2013 2014 2015 2016 2017

New cases Completed cases Cases pending

I. GENERAL ACTIVITY OF THE GENERAL COURT — NEW�CASES,�COMPLETED�CASES,�CASES�PENDING�(2013–17) 1 2

2013 2014 2015 2016 2017New cases 790 912 831 974 917

Completed cases 702 814 987 755 895

Cases pending 1 325 1 423 1 267 1 486 1 508

⁄ 1 Unless otherwise indicated, this table and the following tables take account of special forms of procedure.

The following are considered to be ‘special forms of procedure’: application to set aside a judgment by default (Article 41 of the Statute oftheCourt of Justice; Article 166 of the Rules of Procedure of the General Court); third-party proceedings (Article 42 of the Statute of the Court of Justice; Article 167 of the Rules of Procedure); interpretation (Article 43 of the Statute of the Court of Justice; Article 168 of the Rules of Procedure); revision (Article 44 of the Statute of the Court of Justice; Article 169 of the Rules of Procedure); legal aid (Article�148�of�the�Rules�of�Procedure);�rectification�(Article�164�of�the�Rules�of�Procedure);�failure�to�adjudicate�(Article�165�of�the�Rules�of Procedure); and dispute concerning the costs to be recovered (Article 170 of the Rules of Procedure).

⁄ 2 Unless otherwise indicated, this table and the following tables do not take account of proceedings concerning interim measures.



0

50

100

150

200

250

300

350

2013 2014 2015 2016 2017State aid CompetitionStaff cases Intellectual propertyOther direct actions AppealsSpecial forms of procedure

2013 2014 2015 2016 1 2017Appeals 57 36 36 39


Intellectual property 293 295 302 336 298

Other direct actions 275 299 292 239 346


Staff�cases 163 86

State aid 54 148 73 76 39

Total 790 912 831 974 917

⁄ 1 On�1�September�2016,�123�staff�cases�and�16�special�forms�of�procedure�in�that�area�were�transferred�to�the�General�Court.

II. NEW CASES — NATURE OF PROCEEDINGS (2013–17)



40.46%

0.87%2.50%

2.29%

32.50%

9.38%

12.00%

Actions for annulment

Actions for failure to act

Actions for damages

Arbitration clauses

Intellectual property

Staff cases


III. NEW CASES — NATURE OF PROCEEDINGS (2013–17)

2017

2013 2014 2015 2016 2017Actions for annulment 319 423 332 297 371

Actions for failure to act 12 12 5 7 8

Actions for damages 15 39 30 19 23

Arbitration clauses 6 14 15 10 21



Appeals 57 36 36 39


Total 790 912 831 974 917



IV. NEW CASES — SUBJECT MATTER OF THE ACTION (2013–17)

2013 2014 2015 2016 2017

Access to documents 20 17 48 19 25Accession of new States 1Agriculture 27 15 37 20 22Approximation of laws 13 1 1 5Arbitration clause 6 14 15 10 21Area of freedom, security and justice 6 1 7Association of the Overseas Countries and Territories 1Citizenship of the Union 1Commercial policy 23 31 6 17 14Common�fisheries�policy 3 3 1 2Common foreign and security policy 2 1Company law 1 1Competition 23 41 17 18 38Consumer protection 1 1 2 1Culture 1 1Customs�union�and�Common�Customs�Tariff 1 8 3 1Economic and monetary policy 15 4 3 23 98Economic, social and territorial cohesion 3 3 5 2 3Education, vocational training, youth and sport 2 3 1Employment 2Energy 1 3 3 4 8Environment 11 10 5 6 8External action by the European Union 2 1 2 2Financial�provisions�(budget,�financial�framework,�own�resources,�combating fraud) 4 7 4 5

Free movement of capital 2 1Free movement of goods 1 2 1Freedom of establishment 1Freedom of movement for persons 1 1 1Freedom to provide services 1 1Industrial policy 2Intellectual and industrial property 294 295 303 336 298Law governing the institutions 44 67 53 52 65Public health 5 11 2 6 5Public procurement 15 16 23 9 19Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation) 12 3 5 6 10

Research and technological development and space 5 2 10 8 2Restrictive measures (external action) 41 69 55 28 27Social policy 1 1Social security for migrant workers 1State aid 54 148 73 76 39Taxation 1 1 1 2 1Tourism 2Trans-European networks 3 2Transport 5 1

Total EC Treaty/TFEU 645 777 684 669 721Special forms of procedure 88 93 111 103 110Staff�Regulations 57 42 36 202 86

OVERALL TOTAL 790 912 831 974 917



0

50

100

150

200

250

300

350

400

450

2013 2014 2015 2016 2017

State aid CompetitionStaff cases Intellectual propertyOther direct actions AppealsSpecial forms of procedure

V. COMPLETED CASES — NATURE OF PROCEEDINGS (2013–17)

2013 2014 2015 2016 2017Appeals 39 42 37 26 40





Staff�cases 5 66

State aid 60 51 101 50 24

Total 702 814 987 755 895



Judgments Orders TotalAccess to documents 7 7 14

Agriculture 14 7 21

Approximation of laws 2 2

Arbitration clause 11 6 17

Area of freedom, security and justice 5 5

Commercial policy 13 2 15

Common�fisheries�policy 2 2

Competition 11 7 18

Consumer protection 1 1

Culture 1 1

Customs�union�and�Common�Customs�Tariff 3 2 5

Economic and monetary policy 3 3 6

Economic, social and territorial cohesion 2 10 12

Energy 1 2 3

Environment 3 3

External action by the European Union 1 3 4

Financial�provisions�(budget,�financial�framework,�own�resources, combating fraud)

2 3 5

Freedom of movement for persons 2 2

Intellectual and industrial property 272 104 376


Public health 3 3



3 1 4

Research and technological development and space 5 7 12

Restrictive measures (external action) 22 4 26

State aid 13 11 24

Taxation 3 3Total EC Treaty/TFEU 421 233 654

Special forms of procedure 1 133 134

Staff�Regulations 70 37 107

OVERALL TOTAL 492 403 895

VI. COMPLETED CASES — SUBJECT MATTER OF THE ACTION (2017)



VII. COMPLETED CASES — SUBJECT MATTER OF THE ACTION (2013–17) (JUDGMENTS AND ORDERS)

2013 2014 2015 2016 2017Access to documents 19 23 21 13 14Accession of new States 1Agriculture 16 15 32 34 21Approximation of laws 13 1 2Arbitration clause 8 10 2 17 17Area of freedom, security and justice 7 1 5Association of the Overseas Countries and Territories 1Citizenship of the Union 1Commercial policy 19 18 24 21 15Common�fisheries�policy 2 15 3 2 2Common foreign and security policy 2 1Company law 1Competition 75 72 52 36 18Consumer protection 2 1 1Culture 1 1Customs�union�and�Common�Customs�Tariff 9 6 4 3 5Economic and monetary policy 1 13 9 2 6Economic, social and territorial cohesion 14 1 6 1 12Education, vocational training, youth and sport 1 2 1Employment 2Energy 1 3 1 3 3Environment 6 10 18 4 3External action by the European Union 2 2 4Financial�provisions�(budget,�financial�framework,�own�resources,�combating fraud) 5 1 5

Free movement of capital 2 1Free movement of goods 1 2 1Freedom of establishment 1Freedom of movement for persons 1 2Freedom to provide services 1 1Industrial policy 2Intellectual and industrial property 218 275 388 288 376Law governing the institutions 35 33 58 46 54Public health 4 10 15 3 3Public procurement 21 18 22 20 16Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation) 6 3 9 8 4

Research and technological development and space 4 1 2 6 12Restrictive measures (external action) 40 68 60 70 26Social policy 4 1Social security for migrant workers 1State aid 59 51 101 50 24Taxation 2 1 3Tourism 1 1Trans-European networks 1 2Transport 3 3

Total EC Treaty/TFEU 576 673 851 638 654Total CS Treaty 1

Special forms of procedure 85 95 99 84 134Staff�Regulations 40 46 37 33 107

OVERALL TOTAL 702 814 987 755 895



5.14%

8.94%

2.01%

83.91%

Appeal Chamber

President of the General Court



2013 2014 2015 2016 2017

Judg

men

ts

Ord

ers

Tota

l

Judg

men

ts

Ord

ers

Tota

l

Judg

men

ts

Ord

ers

Tota

l

Judg

men

ts

Ord

ers

Tota

l

Judg

men

ts

Ord

ers

Tota

l

Appeal Chamber

13 47 60 21 32 53 23 14 37 25 13 38 29 17 46


38 38 46 46 44 44 46 46 80 80

Chambers (five�judges)

7 1 8 9 7 16 8 3 11 10 2 12 13 5 18


378 218 596 398 301 699 538 348 886 408 246 654 450 301 751

Single judge 1 8 9 5 5

Total 398 304 702 428 386 814 570 417 987 448 307 755 492 403 895

VIII. COMPLETED CASES — BENCH HEARING ACTION (2013–17)

2017



0

10

20

30

40

50

60

2013 2014 2015 2016 2017State aid CompetitionStaff cases Intellectual propertyOther direct actions Appeals

26.9

23.4

20.618.7

16.3

0

5

10

15

20

25

30

2013 2014 2015 2016 2017

IX. COMPLETED CASES —

DURATION OF PROCEEDINGS IN MONTHS (2013–17) 1

(JUDGMENTS AND ORDERS)

2013 2014 2015 2016 2017Appeals 13.9 12.8 14.8 15.8 14.1

Competition 46.4 45.8 47.7 38.2 21.6

Intellectual property 18.7 18.7 18.1 15.1 14.5

Other direct actions 24.9 22.1 20.9 18.6 18.7

Staff�cases 8.9

State aid 48.1 32.5 17.4 27.2 25.5

All cases 26.9 23.4 20.6 18.7 16.3

DURATION OF PROCEEDINGS (IN MONTHS) ALL CASES DISPOSED OF BY WAY OF JUDGMENT OR ORDER

⁄ 1 The duration of proceedings is expressed in months and tenths of months. The calculation of the average duration of proceedings does not take account of: cases ruled upon by interlocutory judgment; special forms of procedure; appeals concerning interim measures or�interventions;��staff�cases�transferred�to�the�General�Court�on�1�September�2016.�The�average�duration�of�proceedings�in�the�staff�cases transferred to the General Court on 1 September 2016 which it disposed of by way of judgment or order is 19.7 months (taking into account the period before the Civil Service Tribunal and the period before the General Court).



0

10

20

30

40

50

60

2013 2014 2015 2016 2017State aid CompetitionStaff cases Intellectual propertyOther direct actions Appeals

30.528.4

25.722.1

19.5

0

5

10

15

20

25

30

35

2013 2014 2015 2016 2017

X. DURATION OF PROCEEDINGS IN MONTHS (2013–17) 1

(JUDGMENTS)

2013 2014 2015 2016 2017Appeals 22.9 16.6 19.3 16 14.8

Competition 48.9 51.5 49.3 38.6 26.4

Intellectual property 20.9 20.9 19.3 16.5 16.7

Other direct actions 32.5 30.8 29.2 26.1 24.9

Staff�cases 11.9

State aid 37.2 37.7 34 32.6 30.7

All cases 30.5 28.4 25.7 22.1 19.5

DURATION OF PROCEEDINGS (IN MONTHS)ALL CASES DISPOSED OF BY WAY OF JUDGMENT

⁄ 1 The duration of proceedings is expressed in months and tenths of months. The calculation of the average duration of proceedings does not take account of: cases ruled upon by interlocutory judgment; special forms of procedure; appeals concerning interim measures or�interventions;��staff�cases�transferred�to�the�General�Court�on�1�September�2016.�The�average�duration�of�proceedings�in�the�staff�cases transferred to the General Court on 1 September 2016 which it disposed of by way of judgment is 21 months (taking into account the period before the Civil Service Tribunal and the period before the General Court).



0

100

200

300

400

500

600

2013 2014 2015 2016 2017

State aid Competition

Staff cases Intellectual property

Other direct actions Appeals


XI. �CASES�PENDING�AS�AT�31 DECEMBER�—� NATURE OF PROCEEDINGS (2013–17)

2013 2014 2015 2016 2017Appeals 43 37 36 49 9

Competition 148 117 82 64 84





State aid 146 243 215 241 256

Total 1 325 1 423 1 267 1 486 1 508



XII. �CASES�PENDING�AS�AT�31 DECEMBER�—� SUBJECT MATTER OF THE ACTION (2013–17)

2013 2014 2015 2016 2017

Access to documents 38 32 59 65 76Accession of new States 1 1Agriculture 51 51 56 42 43Approximation of laws 13 1 1 4Arbitration clause 13 17 30 23 27Area of freedom, security and justice 7 2Association of the Overseas Countries and Territories 1Commercial policy 45 58 40 36 35Common�fisheries�policy 17 5 2 1 1

Common foreign and security policy 3 1 1 1

Company law 1 1 1 1

Competition 148 117 82 64 84Consumer protection 1 2 2 2 1Culture 1 1 1 1Customs�union�and�Common�Customs�Tariff 7 9 5 5 1Economic and monetary policy 18 9 3 24 116Economic, social and territorial cohesion 13 15 14 15 6Education, vocational training, youth and sport 2 3 3 3Energy 1 1 3 4 9Environment 18 18 5 7 12External action by the European Union 1 3 2 4 2Financial�provisions�(budget,�financial�framework,�own�resources,�combating fraud) 1 5 7 10 10

Freedom of establishment 1

Freedom of movement for persons 1

Industrial policy 2

Intellectual and industrial property 465 485 400 448 370Law governing the institutions 50 84 79 85 96Public health 16 17 4 7 9Public procurement 36 34 35 24 27Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation) 14 14 10 8 14

Research and technological development and space 8 9 17 19 9Restrictive measures (external action) 107 108 103 61 62Social policy 1 1 1 1State aid 146 243 215 241 256

Taxation 1 2

Tourism 1Trans-European networks 3 2 2 2

Transport 5 3

Total EC Treaty/TFEU 1 245 1 349 1 182 1 213 1 280Special forms of procedure 36 34 46 65 41Staff�Regulations 44 40 39 208 187

OVERALL TOTAL 1 325 1 423 1 267 1 486 1 508



0.73%0.07%6.63%

87.73%

4.84%

Appeal Chamber




Not assigned

XIII. �CASES�PENDING�AS�AT�31 DECEMBER�—� BENCH HEARING ACTION (2013–17)

2017

2013 2014 2015 2016 2017Appeal Chamber 51 37 48 51 11

President of the General Court 1 1 12 12 1

Chambers�(five�judges) 12 15 6 23 100

Chambers (three judges) 1 146 1 272 1 099 1 253 1 323

Single judge 1

Not assigned 115 98 101 147 73

Total 1 325 1 423 1 267 1 486 1 508



31

45

32 34

47

27

48

3120

53

0

10

20

30

40

50

60

2013 2014 2015 2016 2017

New Brought to a conclusion

XIV. MISCELLANEOUS — PROCEEDINGS FOR INTERIM MEASURES (2013–17)

2017

New applications for interim measures

Applications for interim measures

brought to a conclusion

Outcome

Granted

Removal from the register/

no need to adjudicate

Dismissed

Access to documents 2 2 1 1

Agriculture 3

Arbitration clause 1 3 3

Common�fisheries�policy 3 3 3

Competition 2 3 1 2

Economic and monetary policy 1 1

Energy 2 4 4

Environment 1 1 1

Financial�provisions�(budget,�financial�framework, own resources, combating fraud)

1


Public health 2 1 1


Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation) 1 3 3

Research and technological development and space 1 1

Restrictive measures (external action) 8 8 8

Staff�Regulations 2 3 1 2

State aid 4 2 2

Taxation 1 1 1

Total 47 53 2 5 46



0

5

10

15

20

25

30

35

2013 2014 2015 2016 2017

Of its own motion Brought Granted Refused Not acted upon 2

XV. MISCELLANEOUS — EXPEDITED�PROCEDURES�(2013–17) 1

2013 2014 2015 2016 2017

Of i

ts o

wn

mot

ion

Bro

ught

Outcome

Of i

ts o

wn

mot

ion

Bro

ught

Outcome

Of i

ts o

wn

mot

ion

Bro

ught

Outcome O

f its

ow

n m

otio

n

Bro

ught

Outcome

Of i

ts o

wn

mot

ion

Bro

ught

Outcome

Gra

nted

Refu

sed

Not

act

ed

upon

2

Gra

nted

Refu

sed

Not

act

ed

upon

2

Gra

nted

Refu

sed

Not

act

ed

upon

2

Gra

nted

Refu

sed

Not

act

ed

upon

2

Gra

nted

Refu

sed

Not

act

ed

upon

2

Access to documents 1 1 2 2 2 2 2 2 2 1

Agriculture 1 1 1 1Area of freedom, security and justice 3 3

Commercial policy 15 2 14 1 1 1Competition 2 2 1 1 1 1 1 1Economic and monetary policy 1 1

Energy 1 1Environment 5 5 1 1External action by the European Union 1 1

Free movement of capital 2 2

Free movement of goods 1 1

Law governing the institutions 1 1 2 2 2 2 5 4 1

Public health 1 2 3 1 1 1 1 1Public procurement 2 1 1 2 1 1 1 1 1 1 1Restrictive measures (external action) 4 4 9 9 4 4 1 1

Staff�Regulations 1 1 1 1 1 1State aid 13 2 10 3 2 2

Total 32 7 26 1 31 3 25 2 1 18 1 12 5 14 3 12 1 10 8 1

⁄ 1 The General Court may decide to deal with a case before it under an expedited procedure at the request of a main party or, since 1 July 2015, of its own motion.

⁄ 2 The category ‘Not acted upon’ covers the following instances: withdrawal of the application for expedition, discontinuance of the action and cases in which the action is disposed of by way of order before the application for expedition has been ruled upon.



0

100

200

300

400

500

600

700

800

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

Number of decisions against which appeals were brought Total number of decisions open to challenge 1

XVI. MISCELLANEOUS — APPEALS AGAINST DECISIONS OF THE GENERAL COURT TO THE COURT OF JUSTICE (1990–2017)

Number of decisions against which appeals were brought

Total number of decisions open to challenge 1

Percentage of decisions against which appeals were brought

1990 16 46 35%1991 13 62 21%1992 25 86 29%1993 17 73 23%1994 12 105 11%1995 47 143 33%1996 27 133 20%1997 35 139 25%1998 67 224 30%1999 60 180 33%2000 67 225 30%2001 69 230 30%2002 47 225 21%2003 66 260 25%2004 53 261 20%2005 64 297 22%2006 77 281 27%2007 78 290 27%2008 84 339 25%2009 92 371 25%2010 98 338 29%2011 158 533 30%2012 132 514 26%2013 144 510 28%2014 110 561 20%2015 203 761 27%2016 163 626 26%2017 137 616 22%

⁄ 1 Total number of decisions open to challenge — judgments, orders concerning interim measures or refusing leave to intervene and all orders terminating proceedings other than those removing a case from the register or transferring a case — in respect of which the period for bringing an appeal expired or against which an appeal was brought.



XVII. MISCELLANEOUS — DISTRIBUTION OF APPEALS BEFORE THE COURT OF JUSTICE ACCORDING TO THE NATURE OF THE PROCEEDINGS (2013–17)

2013 2014 2015 2016 2017

Dec

isio

ns a

gain

st w

hich

ap

peal

s w

ere

brou

ght

Dec

isio

ns o

pen

to c

halle

nge

App

eals

as

a pe

rcen

tage

Dec

isio

ns a

gain

st w

hich

ap

peal

s w

ere

brou

ght

Dec

isio

ns o

pen

to c

halle

nge

App

eals

as

a pe

rcen

tage

Dec

isio

ns a

gain

st w

hich

ap

peal

s w

ere

brou

ght

Dec

isio

ns o

pen

to c

halle

nge

App

eals

as

a pe

rcen

tage

Dec

isio

ns a

gain

st w

hich

ap

peal

s w

ere

brou

ght

Dec

isio

ns o

pen

to c

halle

nge

App

eals

as

a pe

rcen

tage

Dec

isio

ns a

gain

st w

hich

a

ppea

ls w

ere

brou

ght

Dec

isio

ns o

pen

to c

halle

nge

App

eals

as

a pe

rcen

tage

Appeals 2

Competition 28 73 38% 15 44 34% 32 61 52% 17 41 41% 5 17 29%

Intellectual property 38 183 21% 33 209 16% 64 333 19% 48 276 17% 52 298 17%

Other direct actions 62 202 31% 47 231 20% 85 290 29% 75 253 30% 61 236 26%


3 3 100%

Staff�cases 8 37 22%

State aid 16 52 31% 15 77 19% 22 75 29% 23 56 41% 8 25 32%

Total 144 510 28% 110 561 20% 203 761 27% 163 626 26% 137 616 22%



XVIII. MISCELLANEOUS — RESULTS OF APPEALS BEFORE THE COURT OF JUSTICE (2017)(JUDGMENTS AND ORDERS)

App

eal d

ism

isse

d

Dec

isio

n to

tally

or

part

ially

set

asi

de a

nd

no r

efer

ral b

ack

Dec

isio

n to

tally

or

part

ially

set

asi

de a

nd

refe

rral

bac

k

Rem

oval

from

the

regi

ster

/ no

nee

d to

adj

udic

ate

Tota

l

Access to documents 8 1 9Agriculture 8 1 2 11State aid 15 5 3 1 24Competition 36 6 3 45Financial�provisions�(budget,�financial�framework,�own resources, combating fraud)

3 3

Law governing the institutions 17 2 19Energy 1 1Registration, evaluation, authorisation and restriction of chemicals (REACH Regulation)

6 6

Environment 1 1Public procurement 1 1Commercial policy 8 4 12Common�fisheries�policy 1 1Economic and monetary policy 1 1Common foreign and security policy 7 1 8Principles of EU law 1 1Procedure 3 3Intellectual and industrial property 39 2 1 42Consumer protection 1 1Approximation of laws 1 1Research and technological development and space

2 2

Public health 3 1 4Staff�Regulations 1 1Transport 1 1

Total 163 23 11 1 198



0

20

40

60

80

100

120

140

160

180

2013 2014 2015 2016 2017

Appeal dismissed

Decision totally or partially set aside and no referral back

Decision totally or partially set aside and referral back

Removal from the register/no need to adjudicate

(JUDGMENTS AND ORDERS)

2013 2014 2015 2016 2017Appeal dismissed 133 121 98 156 163

Decision totally or partially set aside and no referral back

6 18 19 12 23

Decision totally or partially set aside and referral back

15 10 7 9 11

Removal from the register/no to adjudicate 6 9 10 12 1

Total 160 158 134 189 198

XIX. MISCELLANEOUS — RESULTS OF APPEALS BEFORE THE COURT OF JUSTICE (2013–17)



XX. MISCELLANEOUS — GENERAL TREND (1989–2017) NEW CASES, COMPLETED CASES, CASES PENDING

New cases 1 Completed cases 2Cases pending on

31 December1989 169 1 168

1990 59 82 145

1991 95 67 173

1992 123 125 171

1993 596 106 661

1994 409 442 628

1995 253 265 616

1996 229 186 659

1997 644 186 1 117

1998 238 348 1 007

1999 384 659 732

2000 398 343 787

2001 345 340 792

2002 411 331 872

2003 466 339 999

2004 536 361 1 174

2005 469 610 1 033

2006 432 436 1 029

2007 522 397 1 154

2008 629 605 1 178

2009 568 555 1 191

2010 636 527 1 300

2011 722 714 1 308

2012 617 688 1 237

2013 790 702 1 325

2014 912 814 1 423

2015 831 987 1 267

2016 974 755 1 486

2017 917 895 1 508

Total 14 374 12 866

⁄ 1 1989: the Court of Justice referred 153 cases to the newly created Court of First Instance (now the General Court). 1993:�the�Court�of�Justice�referred�451�cases�as�a�result�of�the�first�extension�of�the�jurisdiction�of�the�Court�of�First�Instance.�� 1994: the Court of Justice referred 14 cases as a result of the second extension of the jurisdiction of the Court of First Instance. 2004–05: the Court of Justice referred 25 cases as a result of the third extension of the jurisdiction of the Court of First Instance. 2016:�on�1�September�2016,�139�staff�cases�were�transferred�to�the�General�Court.��

⁄ 2 2005–06: the Court of First Instance referred 118 cases to the newly created Civil Service Tribunal.



XXI. ACTIVITY OF THE REGISTRY OF THE GENERAL COURT (2015–17)

Type of act 2015 2016 2017

Number of procedural documents entered in the register of the Registry 1

46 432 49 771 55 070

Number of applications initiating proceedings 2 831 835 917

Number�of�staff�cases�transferred�to�the�General�Court�3 – 139 –

Rate of regularisation of the applications initiating proceedings 4 42.50% 38.20% 41.20%

Number of written pleadings (other than applications) 4 484 3 879 4 449

Number of applications to intervene 194 160 565

Number�of�requests�for�confidential�treatment�(of�data�contained� in procedural documents) 5

144 163 212

Draft orders prepared by the Registry 6 (manifest inadmissibility before service, stay/resumption, joinder of cases, joinder of a plea of inadmissibility with the substance of the case, uncontested intervention, removal from the register, finding�of�no�need�to�adjudicate�in�intellectual�property�cases,�reopening�of�the�oral�part�of�the�procedure�and�rectification)

521 241 317

Number of chamber conferences (with services of the Registry) 303 321 405

Number of minutes of hearings and records of delivery of judgment 873 637 812

⁄ 1 This number is an indicator of the volume of work of the Registry, since each incoming or outgoing document is entered in the register. The number of procedural documents entered in the register must be assessed in the light of the nature of the proceedings within the Court’s jurisdiction. As the number of parties to proceedings is limited in direct actions (applicant, defendant and, as the case may be,�intervener(s)),�service�is�effected�only�on�those�parties.�

⁄ 2 Any�written�pleadings�lodged�(including�applications)�must�be�entered�in�the�register,�placed�on�the�case�file,��put�in�order�where�appropriate, communicated to the judges’ chambers with a transmission sheet, which is sometimes detailed, then possibly translated and, lastly, served on the parties.

⁄ 3 On 1 September 2016.

⁄ 4 Where an application initiating proceedings (or any other written pleading) does not comply with certain requirements, the Registry ensures that it is put in order, as provided in the Rules of Procedure.

⁄ 5 The�number�of�requests�for�confidentiality�is�without�prejudice�to�the�amount�of�data�contained�in�one�or�more�pleadings�for�which�confidential�treatment�is�requested.

⁄ 6 Since the entry into force, on 1 July 2015, of the new Rules of Procedure of the General Court, certain decisions that were previously taken�in�the�form�of�orders�(stay/resumption,�joinder�of�cases,��intervention�by�a�Member�State�or�an�institution�where�confidentiality�is�not�raised)�have�been�taken�in�the�form�of�a�simple�decision�added�to�the�case�file.



9 10957%

43%

67%

33%

11 530 9 016

72%

28%

8 302

76%

24%

9 756

83%

17%

2013

5 220

3 889

2014

7 732

3 798

2015

6 512

2 504

2016

6 3251 977

2017

8 1171 639

Lodgment by e-Curia

Other methods of lodgment

Total

XXII. METHODS OF LODGING PROCEDURAL DOCUMENTS BEFORE THE GENERAL COURT



500 000 1 000 000 1 500 000 2 000 000 2 500 000

Aggregate

2017

2016

2015

2014

2013

XXIII. NUMBER OF PAGES LODGED BY E-CURIA (2013–17) 1

2013 2014 2015 2016 2017 AggregateNumber of pages lodged by e-Curia

266 048 390 892 466 875 396 072 805 768 2 325 655

⁄ 1 For the years 2013 to 2016, the data do not include the number of pages of the applications initiating proceedings.



582

783

601

725

768

574

611

800

687

717

2013

2014

2015

2016

2017

New cases Completed cases

XXIV. NOTICES IN THE OFFICIAL JOURNAL OF THE EUROPEAN UNION (2013–17)



13 11 12 2 4

95

172154

120138

86

122135

96

1451

37

51

5137

10

40

27

34

38

15

26

0

50

100

150

200

250

300

350

400

2013 2014 2015 2016 2017

Appeals Other direct actionsIntellectual property Staff casesCompetition State aid

XXV. NUMBER OF CASES PLEADED (2013–17)

2013 2014 2015 2016 2017Total 272 390 376 244 390

E/COMPOSITION OF THE GENERAL COURT

(Order of precedence as at 31 December 2017)

First row, from left to right:

I. Labucka, Judge; A.M. Collins, President of Chamber; G. Berardis, President of Chamber; H. Kanninen, President of Chamber; M. Prek, President of Chamber; M. van der Woude, Vice-President of the Court; M. Jaeger, President of the Court; I. Pelikánová, President of Chamber; S. Frimodt Nielsen, President of Chamber; D. Gratsias, President of�Chamber;�V.�Tomljenović,�President�of�Chamber;�S.�Gervasoni,�President�of�Chamber;�S.�Papasavvas,�Judge

Second row, from left to right:

C. Iliopoulos, Judge; L. Madise, Judge; V. Kreuschitz, Judge; E. Buttigieg, Judge; J. Schwarcz, Judge; A. Dittrich, Judge; M.�Kancheva,�Judge;�E.�Bieliūnas,�Judge;�I.�Ulloa�Rubio,�Judge;�I.S.�Forrester,�Judge;�L.�Calvo-Sotelo�Ibáñez-Martín,�Judge

Third row, from left to right:

P.�Nihoul,�Judge;�R.�Barents,�Judge;�I.�Reine,�Judge;�P.G.�Xuereb,�Judge;�N.�Półtorak,�Judge;�V.�Valančius,�Judge;� D. Spielmann, Judge; Z. Csehi, Judge; A. Marcoulli, Judge; F. Schalin, Judge; E. Perillo, Judge; R. da Silva Passos, Judge

Fourth row, from left to right:

G. De Baere, Judge; A. Kornezov, Judge; J. Passer, Judge; O. Spineanu-Matei, Judge; J. Svenningsen, Judge; B. Berke, Judge;�U.�Öberg,�Judge;�M.J.�Costeira,�Judge;�K.�Kowalik-Bańczyk,�Judge;�C.�Mac�Eochaidh,�Judge;�E.�Coulon,�Registrar



1. CHANGES IN THE COMPOSITION OF THE GENERAL COURT IN 2017

Mr�Emmanuel�Coulon,�Registrar�of�the�General�Court�since�6�October�2005,�whose�term�of�office�expired�on�5 October 2017, had his term renewed on 16 November 2016 for the period from 6 October 2017 to 5 October 2023.

FORMAL SITTING ON 8 JUNE 2017

By decision of 29 March 2017, the representatives of the Governments of the Member States of the European Union appointed Mr Colm Mac Eochaidh as judge at the General Court for the period from 2 April 2017 to 31 August 2019.

A formal sitting was held at the Court of Justice on 8 June 2017 on the occasion of the taking of the oath and entry into�office�of�the�new�judge�of�the�General�Court.�

FORMAL SITTING ON 4 OCTOBER 2017

By decision of 6 September 2017, the representatives of the Governments of the Member States of the European Union appointed Mr Geert De Baere as judge at the General Court for the period from 15 September 2017 to 31 August 2022.

A formal sitting was held at the Court of Justice on 4 October 2017 on the occasion of the taking of the oath of the newly appointed judge.



2. ORDER OF PRECEDENCE

FROM 1 JANUARY 2017 TO 8 JUNE 2017

M. JAEGER, PresidentM. van der WOUDE, Vice-PresidentI. PELIKÁNOVÁ, President of ChamberM. PREK, President of ChamberS. FRIMODT NIELSEN, President of ChamberH. KANNINEN, President of ChamberD. GRATSIAS, President of ChamberG. BERARDIS, President of ChamberV.�TOMLJENOVIĆ,�President�of�ChamberA.M. COLLINS, President of ChamberS. GERVASONI, President of ChamberI. LABUCKA, JudgeS. PAPASAVVAS, JudgeA. DITTRICH, JudgeJ. SCHWARCZ, JudgeM. KANCHEVA, Judge E. BUTTIGIEG, JudgeE.�BIELIŪNAS,�JudgeV. KREUSCHITZ, JudgeI. ULLOA RUBIO, JudgeL. MADISE, JudgeI.S. FORRESTER, JudgeC. ILIOPOULOS, JudgeL. CALVO-SOTELO IBÁÑEZ-MARTÍN, JudgeD. SPIELMANN, JudgeV.�VALANČIUS,�JudgeZ. CSEHI, JudgeN.�PÓŁTORAK,�JudgeA. MARCOULLI, JudgeP.G. XUEREB, JudgeF. SCHALIN, JudgeI. REINE, JudgeE. PERILLO, JudgeR. BARENTS, JudgeR. da SILVA PASSOS, JudgeP. NIHOUL, JudgeB. BERKE, JudgeJ. SVENNINGSEN, JudgeU. ÖBERG, JudgeO. SPINEANU-MATEI, JudgeM.J. COSTEIRA, JudgeJ. PASSER, JudgeK.�KOWALIK-BAŃCZYK,�JudgeA. KORNEZOV, Judge

E. COULON, Registrar



FROM 8 JUNE 2017 TO 4 OCTOBER 2017

M. JAEGER, PresidentM. van der WOUDE, Vice-PresidentI. PELIKÁNOVÁ, President of ChamberM. PREK, President of ChamberS. FRIMODT NIELSEN, President of ChamberH. KANNINEN, President of ChamberD. GRATSIAS, President of ChamberG. BERARDIS, President of ChamberV.�TOMLJENOVIĆ,�President�of�ChamberA.M. COLLINS, President of ChamberS. GERVASONI, President of ChamberI. LABUCKA, JudgeS. PAPASAVVAS, JudgeA. DITTRICH, Judge J. SCHWARCZ, JudgeM. KANCHEVA, JudgeE. BUTTIGIEG, JudgeE.�BIELIŪNAS,�JudgeV. KREUSCHITZ, JudgeI. ULLOA RUBIO, JudgeL. MADISE, JudgeI.S. FORRESTER, JudgeC. ILIOPOULOS, JudgeL. CALVO-SOTELO IBÁÑEZ-MARTÍN, JudgeD. SPIELMANN, JudgeV.�VALANČIUS,�JudgeZ. CSEHI, JudgeN.�PÓŁTORAK,�JudgeA. MARCOULLI, JudgeP.G. XUEREB, JudgeF. SCHALIN, JudgeI. REINE, JudgeE. PERILLO, JudgeR. BARENTS, JudgeR. da SILVA PASSOS, JudgeP. NIHOUL, JudgeB. BERKE, JudgeJ. SVENNINGSEN, JudgeU. ÖBERG, JudgeO. SPINEANU-MATEI, JudgeM.J. COSTEIRA, JudgeJ. PASSER, JudgeK.�KOWALIK-BAŃCZYK,�JudgeA. KORNEZOV, JudgeC. MAC EOCHAIDH, Judge




FROM 4 OCTOBER 2017 TO 31 DECEMBER 2017

M. JAEGER, PresidentM. van der WOUDE, Vice-PresidentI. PELIKÁNOVÁ, President of ChamberM. PREK, President of ChamberS. FRIMODT NIELSEN, President of ChamberH. KANNINEN, President of ChamberD. GRATSIAS, President of ChamberG. BERARDIS, President of ChamberV.�TOMLJENOVIĆ,�President�of�ChamberA.M. COLLINS, President of ChamberS. GERVASONI, President of ChamberI. LABUCKA, JudgeS. PAPASAVVAS, JudgeA. DITTRICH, Judge J. SCHWARCZ, JudgeM. KANCHEVA, JudgeE. BUTTIGIEG, JudgeE.�BIELIŪNAS,�JudgeV. KREUSCHITZ, JudgeI. ULLOA RUBIO, JudgeL. MADISE, JudgeI.S. FORRESTER, JudgeC. ILIOPOULOS, JudgeL. CALVO-SOTELO IBÁÑEZ-MARTÍN, JudgeD. SPIELMANN, JudgeV.�VALANČIUS,�JudgeZ. CSEHI, JudgeN.�PÓŁTORAK,�JudgeA. MARCOULLI, JudgeP.G. XUEREB, JudgeF. SCHALIN, JudgeI. REINE, JudgeE. PERILLO, JudgeR. BARENTS, JudgeR. da SILVA PASSOS, JudgeP. NIHOUL, JudgeB. BERKE, JudgeJ. SVENNINGSEN, JudgeU. ÖBERG, JudgeO. SPINEANU-MATEI, JudgeM.J. COSTEIRA, JudgeJ. PASSER, JudgeK.�KOWALIK-BAŃCZYK,�JudgeA. KORNEZOV, JudgeC. MAC EOCHAIDH, JudgeG. DE BAERE, Judge




3. FORMER MEMBERS OF THE GENERAL COURT

(in�order�of�their�entry�into�office)

JUDGES

Donal Patrick Michael BARRINGTON (1989–1996) (†)Antonio SAGGIO (1989–1998), President (1995–1998) (†)David Alexander Ogilvy EDWARD (1989–1992)Heinrich KIRSCHNER (1989–1997) (†)Christos YERARIS (1989–1992)Romain Alphonse SCHINTGEN (1989–1996)Cornelis Paulus BRIËT (1989–1998)José Luis da CRUZ VILAÇA (1989–1995), President (1989–1995)Bo VESTERDORF (1989–2007), President (1998–2007)Rafael GARCÍA-VALDECASAS Y FERNÁNDEZ (1989–2007)Jacques BIANCARELLI (1989–1995)Koen LENAERTS (1989–2003)Christopher William BELLAMY (1992–1999)Andreas KALOGEROPOULOS (1992–1998)Virpi TIILI (1995–2009)Pernilla LINDH (1995–2006)Josef AZIZI (1995–2013)André POTOCKI (1995–2001)Rui Manuel GENS de MOURA RAMOS (1995–2003)John D. COOKE (1996–2008)Jörg PIRRUNG (1997–2007)Paolo MENGOZZI (1998–2006)Arjen W.H. MEIJ (1998–2010)Mihalis VILARAS (1998–2010)Nicholas James FORWOOD (1999–2015)Hubert LEGAL (2001–2007)Maria Eugénia MARTINS de NAZARÉ RIBEIRO (2003–2016)Franklin DEHOUSSE (2003–2016)Ena CREMONA (2004–2012)Ottó CZÚCZ (2004–2016)Irena�WISZNIEWSKA-BIAŁECKA�(2004–2016)Daniel ŠVÁBY (2004–2009) Vilenas VADAPALAS (2004–2013)Küllike�JÜRIMÄE�(2004–2013)Verica TRSTENJAK (2004–2006)Enzo MOAVERO MILANESI (2006–2011)Nils WAHL (2006–2012)Teodor TCHIPEV (2007–2010)Valeriu�M.�CIUCĂ�(2007–2010)Santiago SOLDEVILA FRAGOSO (2007–2013)Laurent TRUCHOT (2007–2013)Kevin O’HIGGINS (2008–2013)



Andrei POPESCU (2010–2016)Carl WETTER (2013–2016)

PRESIDENTS

José Luis da CRUZ VILAÇA (1989–1995)Antonio SAGGIO (1995–1998) (†)Bo VESTERDORF (1998–2007)

REGISTRAR

Hans JUNG (1989–2005) (†)



COMMUNICATIONS DIRECTORATEPUBLICATIONS AND ELECTRONIC MEDIA UNIT

QD-AP-18-001-EN-N ISBN 978-92-829-2793-9

DOI:10.2862/531984 EN


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